Skip to main content

Full text of "An introduction to Roman-Dutch law"

See other formats




'jii' 





^orn^Il Slam Bt\)mi Sltfaratg 



Cornell University Library 
KG 3764.L47I6 



Introduction to Roman- 



Dutch law 



3 1924 025 050 026 





Cornell University 
Library 



The original of this book is in 
the Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/cletails/cu31924025050026 



AN 

INTRODUCTION 

TO 

ROMAN-DUTCH LAW 

R° W.^LEE, B.C.L., M.A. 

DEAH OF THE LAW FACULTy, M^GILL UNIVERSITY, MONTREAL 

ADVOCATE OF THE SUPREME COURT OF SOUTH AFRICA 

OF GRAY'S INN, BARRISTER-AT-LAW 

AND LATELY 

PROFESSOR OF ROMAN-DUTCH LAW IN THE UNIVERSITY OF LONDON 



OXFORD 

AT THE CLARENDON PRESS 

1915 



/3 7^99 

OXFOED UNIVEKSITY PEESS 

LONDON EDINBURGH GLASGOW NEW YORK 

TORONTO MELBOURNE BOMBAY 

HUMPHREY MILFOED M.A. 

PUBLISHEK TO THE UNIVERSITY 



PRINTED IN ENGLAND AT THE OXFORD UNIVERSITY PEESS 




TO 

THE HON. J. G. KOTZE 

ONE OF HIS majesty's JUDGES 

OF THE 

SUPREME COURT OF SOUTH AFRICA 

LATE CHIEF JUSTICE OF THE TRANSVAAL 



a 2 



PREFACE 

This book, as its title indicates, is an Introduction to 
Roman-Dutch Law. It has grown out of a course of 
lectures delivered in the University of London at intervals 
in the years 1906-14. During this time I was frequently 
asked by students to recommend a text-book which 
would help them in their reading and perhaps enable 
them to satisfy the requirements of the University or of 
the Council of Legal Education. The book was not to 
be found. The classical Introduction to the Jurisprudence 
of the Province of Holland of Grotius, published in the 
year 1631, inevitably leaves the reader in a state of 
bewilderment as to the nature and content of the Roman- 
Dutch Law administered at the present day by the 
Courts of South Africa, Ceylon, and British Guiana. 
The same must be said of the treatise of Simon van 
Leeuwen entitled The Roman-Dutch Law, published 
in 1664, and of the elementary Handbook of Joannes van 
der Linden, published in 1806. 

Of more modern works the excellent volume of Mr. G. T. 
Morice entitled English and Boman-Dutch Law scarcely 
meets the needs of the mere beginner, while the Institutes 
of Gape Law of Chief Justice Sir A. F. S. Maasdorp, the 
weighty work of Dr. Manfred Nathan on The Common 
Law of South Africa, and the Laws of Ceylon of Mr. Justice 
Pereira, besides being not especially fitted for the use 
of students, deal only with the laws of the several 



vi PREFACE 

jurisdictions to which they relate. What was needed 
was a book of modest compass, published at a reason- 
able price, which would put a student, whether from 
South Africa, Ceylon, or British Guiana, in the way 
of acquiring a knowledge of the general principles of 
the Roman-Dutch Law as it exists at the present day 
in Africa, Asia, or America. Such a work would supply 
an historical background ; would refer the reader to 
the original sources and teach him to distinguish in 
them what is obsolete from what is of living interest. 
These, therefore, are the objects which I have set be- 
fore me. I have aimed at producing not a treatise on 
the Law of South Africa, or of Ceylon, or of British 
Guiana in particular, but rather an exposition of the 
principles of the Roman-Dutch Common Law, which 
forms the historical basis of all those systems, and which, 
however much abrogated, limited, or transformed by 
legislation, by judicial decision, or by custom, is still in 
greater or less measure the substance of which they 
consist. It is for the student, principally, that the book 
is intended and for any other person who may care to have 
before him a general picture of the Roman-Dutch Law 
at the present day. The practitioner, should he happen 
to glance at my pages, may find that I have here or 
there supplied a reference or suggested a point of view. 

Though the book is not bulky, I may perhaps be 
permitted to say that its composition has involved 
considerable labour. Research in Latin and Dutch 
folios and quartos of bygone centuries takes time and 
the results are not always immediately apparent. 



PREFACE vii 

Amongst well-known text-writers my references are 
principally to Voet, Van Leeuwen, Van der Keessel and 
Van der Linden. The citations of Van der Keessel's 
Dictata are from manuscript copies in my possession, 
which I have reason to believe conform substantially to 
the Leyden exemplar. For the rest, my studies have 
been partly conditioned by the contents of my own 
library. It will probably be thought that my citations 
are on the whole sufficiently numerous. Circumstances 
have prevented me from referring as often as I should 
have wished to many valuable articles in the South 
African Law Journal. I must be content with a general 
mention of that excellent review. 

In the spelling of Dutch words I have as a rule followed 
the vagaries of my original. In citing Grotius I have 
usually quoted the first or second edition of the Inleiding. 
This accounts for such strange forms as ' muirbezwaring ', 
' inbalcking ', &c. 

For the law of South Africa and Ceylon I have made 
use of the works mentioned above as well as of Messrs. 
Bisset & Smith's Digest of South African Case Law. For 
the law of British Guiana I have received valuable 
help from Mr. W. J. Gilchrist, Barrister-at-Law of Gray's 
Inn, who holds an important position in the Civil Service 
of the Colony. The notes from his tand have in many 
cases been indicated by the letter ' G ' between square 
brackets ; but my indebtedness goes beyond what is 
thus formally acknowledged. My thanks are due also to 
my former pupil Mr. E. Draper, of the Inner Temple, 
for many useful references to South African cases. 

I have to express my gratitude to the Delegates of 



viii PREFACE 

the Clarendon Press for acting upon the maxim ' Business 
as usual ', and persevering with the publication of this 
work notwithstanding the outbreak of the European 
War. 

With regard to the proposed abolition of. the Roman- 
Dutch Common Law in British Guiana, my latest informa- 
tion is that a Committee has been appointed by the 
Governor to advise as to the necessary legislation. 

My recent removal to Montreal, where I have not 
access to South African Law Reports and other neces- 
sary books of reference, has hampered me a little in 
seeing the work through the press. I trust, however, 
that any errors which may arise from this cause will 
be neither numerous nor important. 

My friends Dr. W. R. Bisschop, Barrister-at-Law of 
Lincoln's Inn and the Middle Temple, and Mr. J. C. V. 
Behan, Barrister-at-Law of the Middle Temple and Fellow 
of University College, Oxford, have given me kind assis- 
tance in correcting the proofs. 

I am permitted to dedicate my book to the honoured 
name of Mr. Justice Kotze. 

R. W. LEE. 

Montreal, 
June 18, 1915. 



CONTENTS 

PAGE 

Authorities cited oe refbrbed to with Mode of Citation . xiii 

Table of Law Reports with Mode of Citation . . . xviii 

Table of Cases ......... xx 

Table of Statutes ...... . xxix 

General Intboductios ....... 1 

Appendix : How far the Statute Law of Holland obtains 

in the Colonies ....... 24 

BOOK T. THE LAW OP PERSONS 



Chapter I. Birth, Sex, Legitimacy .... 

Section 1. Birth ....... 

Section 2. Sex ....... 

Section 3. Legitimacy ...... 

Chapter IL Parentage 

A. The reciprocal duty of support .... 

B. The parental power and its consequences . 

Chapter III. Menobity 

Chapter IV. Guardianship 

Section 1. The Kinds of Guardians and the Appointment 
of Guardians ....... 

Section 2. Who may be Guardians 

Section 3. The Powers, Rights, and Duties of Guardians 

Section 4. Actions arising out of Guardianship 

Section 5. How Guardianship ends 
Chapter V. Marriage 

Section 1. The Contract to Marry .... 

Section 2. The Legal Requisites of Marriage . 

Section 3. The Legal Consequences of Marriage 

Section 4. Ante-nuptial Contracts .... 

Section 5. Dissolution of Marriage .... 

Section 6. Miscellaneous Matters relating to Marriage 



28 
28 
28 
28 
31 
31 
32 

37 
44 

44 
50 
52 
60 
63 
64 
64 
66 
77 
83 
98 
100 



X CONTENTS 

PAGE 

Chaptee VI. Unsoundness of Mind. Peodigality . . 103 

Chapter VII. Jueistio Persons 105 

Appendix A. Fobm of Grant of Venia Abtatis in Ceylon 107 

Appendix B. Foem of Ante-nuptial Contract in use in 

South Africa 108 



BOOK II. THE LAW OF PROPERTY 

Chapter I. The Meaning of Ownership . . . .111 
Chapter II. Classification of Things . . , .112 
Chapter III. How Ownership is acquired .... 119 
Chapter IV. Ownership 135 

Section 1. The Incidents of Ownership in General . .135 
Section 2. The Kinds of Ownership of Land . . . 139 

Chapter V. Possession 144 

Chapter VI. Servitudes 148 

Chapter VII. Mortgage or Hypothec .... 162 

Appendix A. Rights of the Public and of the Crown in 

THE Seashore ........ 182 

Appendix B. The System of Conveyancing in British 

Guiana 184 



BOOK III. THE LAW OF OBLIGATIONS 

Part I. Obligations arising from Contract . . . 188 

Chapter I. Formation of Contract , . . . .189 

Section 1. The Parties must be agreed .... 190 
Section 2. The requisite Forms or Modes of Agreement, if 

any, must be observed ...... 195 

Section 3. The Agreement must not have been procured 

by Fraud or Fear ....... 200 

Section 4. The Agreement must not be directed to an 

Illegal Object ........ 205 

Section 5. The Parties must be competent to contract . 210 



CONTENTS 



XI 



Chapter II. Opeeation oe Conteact . 

Section 1. The Persons affected by a Contract 

Section 2. The Duty of Performance 

Section 3. The Consequences of Non-performance 

Chapter III. Interpretation of Contract . 

Chapter IV. Determination op Conteaot . 

Chapter V. Plurality op Creditors and Debtors 

Chapter VI. Special Contracts 

Part II. Obligations arising prom Dbuct 

Part III. Obligations arising prom Sources other 
Contract And Delict .... 

Appendix : Liabiuty for Injury by Animals 



PAGE 

210 
210 
217 

227 

233 

234 

244 

247 

267 

r 
282 

, 283 



BOOK IV. THE LAW OF SUCCESSION 

Chapter I. Succession in General ..... 285 

Chapter II. Testamentary Succession .... 290 

Chapter III. Intestate Succession . . , . . 326 

Appendix : Precedents or Mutual Wills from South Africa 345 



AUTHORITIES CITED OR REFERRED TO 
WITH MODE OF CITATION 

Alphen, W. van. Papegay ofte rormulierboek. Papegay. 
Arunachalam, Sm P. A Digest of the Civil Law of Ceylon. 
Atjsten, J. E. W. Schorer, Aanteekeningen over de Inleydinge tot 

de HoUandsche rechtsgeleerdheid van H. de Groot, uit het Latijn 

vertaald door . . . 

Berwick, T. Contribution to an English Translation of Voet's 
Commentary on the Pandects, being lib. xviii-xxi and tit. 7 of 
lib. xiii. Contents — Purchase and Sale, Letting and Hiring, Mort- 
gages, Evictions. 

BissET, M., & Smith, P. P. The Digest of South African Case Law. 

Blackstone, Sir W. Commentaries on the Laws of England. 
Bl. Comm. 

BoEL, T. See Loenius. 

BoEY, T. Woordentolk. 

BoBT, P. Tractaet van Complaincte. 

Tractaet van de Domeynen van Hollandt. 

British Guiana, The Laws of, ed. 1905. 

British Guiana, Report of the Common Law Commission, 1914. 

Bruvn, D. p. Opinions of Grotius (translated into English from the 
HoUandsche Consultatien). 

BuRGE, W. Colonial and Foreign Laws, New Edition (London, 1907). 

Biirgerliches Gesetzbuch (German Civil Code). 

Burgerlijke Wetboek (Dutch Civil Code). B. W. B. 

Bynkershoek, Cornelis van. Observationes Juris Romani. Obs. 
Jur. Bom. 

Quaestiones Juris Privati. Quaest. Jur. Priv. 

Calvtnus, J. Lexicon juridicum juris Caesarei simul et Canonici. 

Censura Forensis. See Leeuwen, S. van. 

Chus, J. A. VAN DEE. Nederlandsch-Indisch Plakaat-Boek. 

Code Civil (French Civil Code). 

Codex Theodosianus. Cod. Theod. 

Commercial Laws of the World, vol. xv (South Africa, &c.). 

Corpus Juris Civilis. Institutiones. Inst. 

Digesta. Dig. 



xiv AUTHORITIES CITED 

Corpus Juris Civilis. Codex. Cod. 

Novellae. Nov. 

Authentica. Authent. 

Cum notis D. Gothofredi. Ooihofredus. 

Decisien en Eesolutien van den Hove van Holland ('s Haage, 1751). 
Dbckbe, Mr. Cobnblis W. Latin annotations of S. van Leeuwen's 
Eoomsch-Hollandsch Recht, ed. 1780. Decker ad Van Leeuwen. 

FocKEMA Andbbae, Mr. S. J. Bijdragen tot de Nederlandsche Rechts- 

gesohiedenis (Haarlem, 1888-1900). 

Het Oud-Nederlandsoh Burgerlijk Recht (Haarlem, 1906). 

New edition, vidth notes, of Grotius' Inleiding tot de Hollandsche 

Rechtsgeleerdheyd (2nd ed., Arnhem, 1910). 
Pbttin, Robert. Geschiedenis der Staatsinstellingen in Nederland, 

uitgegeven door Dr. H. T. Colenbrander. 

Gaill, a. Practicae Observationes. 

German Civil Code. 

GiBAED, p. p. Manuel 616mentaire de droit remain (5™« id.). Girard. 

GoTJDSMiT, J. E. Pandekten-systeem. 

Gboenewbgbn, S. VAN DBB Made. Annotations of Grotius' Inleiding 
tot de HoUandsche Rechtsgeleerdheid. Oroen. ad Gr. 

Tractatus de legibus abrogatis et inusitatis in Hollandia vicinisque 

regionibus. Oroen. de leg. abr, 

Groot Placcaet-Boeck, vervattende de Placaten, Ordonnantien, ende 
Edicten van de Staten Generael, van de Staten van Hollandt 
en West Vrieslant en van Zeelandt (1576-1795), by-een-gebraoht 
door C. Cau, Simon van Leeuwen, J. en J. P. Scheltus en J. van 
der Linden. G. P. B. 

Geotius (de Gboot), Hugo. Inleiding tot de Hollandsche Rechts- 
geleerdheid. Gr. 

[See Fockema Andreae ; Groenewegen ; Keessel, van der ; 
Rechtsgeleerde Observatien; Schorer.] 

GuDBLTNUS, P. De jure novissimo. 

Heineccitts, J. G. Elementa Juris Civilis. Elem. Jur. Civ. 

Elementa Juris Germanioi. Elem. Jur. Germ. 

Heumann. Handlexicon zu den Quellen des romischen Rechts. 

Holland, T. Jurisprudence. 

Hollandsche Consultatien. Hall. Cons. 

HooLA VAN NooTBN, D. Vaderlandsche rechten voor den burger 

■ (Amsterdam, 1793-4). 
HuBEB, Ulbik. Heedensdaegsohe Reohtsgeleertheyt. 

Praelectiones Juris Civilis. 

HuNTBE, W. A. Roman Law. 



AUTHORITIES CITED xv 

Jenks, Edward. A Digest of English Civil Law. 

A Short History of English Law. 

Jones, P. S. T., & IsaBAM, C. J. Leading Cases on South African Law, 

Part I, Persons. 
Journal of the Society of Comparative Legislation. Journ. Oomp. Leg. 
JuTA, Sm H. Water Eights. 

[See Linden, van der.] 

Kbbssel, D. G. van deb. Theses selectae juris HoUandici et Zelandioi 
ad supplendam Hugonis Grotii Introductionem ad Jurispruden- 
tiam Hollandicam. F. A. K. Th. 

Translation of the above by C. A. Lorenz. 

MS. Diotata upon the above. Dictat. 

Keestbman, E. L. Hollandsch rechtsgeleert Woordenboek, met 
Aanhangsel. 

Law Quarterly Review. L. Q. B. 

Leeuwen, Me. Simon van. Censura Forensis, recensuit Gerardus de 

Haas (Leyden, 1741). Cens. For. 

Het Roomsch-Hollandsch Reoht. Van Leeuioen. 

■ Het Roomsch-Hollandsch Reoht, met Aanteekeningen uitgebreid 

door Mr. CorneUs Willem Decker (Amsterdam, 1780). Decker ad 

Van Leeuwen. 
Simon van Leeuwen's Commentaries on Roman-Dutch Law, 

revised and edited by C. W. Decker, translated with added notes 

by J. G. Kotz6. Kotze's Van Leeuwen. 
Leysee, A. Meditationes ad Pandectas. 
Lendbn, J. VAN DEE. Rcclitsgelcerd, Praoticaal, en Koopman's 

Handbook. V. d. L. 
The same, translated by Sir H. Juta under the title ' Institutes 

of Holland '. 
Verhandeling over de judicieele practycq of form van procedeeren 

voor de Hoven van Justitie in Holland gebruikelijk. 
Verzameling van meerkwaardige Gewijsden der Gerechtshoven in 

Holland. 
[See Pothier, Voet.] 
LoENirs, J. Deoisien en Resolutien. Loen. Becis. 

Annotations of the same by T. Boel. Boel ad Loen. 

LoEBNZ, C. A. [See Keessel, van der.] 

Lybbbghts, a. Redeneerend Vertoog over 't Notaris-ambt. 

Maasdoep, Sib A. F. S. The Institutes of Cape Law. Maasd. 

Translation of Grotius' ' Inleiding ', under the title ' Introduction 

to Dutch Jurisprudence '. 
McGeegoe, a. J. Translation, with notes, of Voet, Book xxxvi, 

titles 1 and 2 (ad Senatus-Consultum Trebellianum). 



xvi AUTHORITIES CITED 

Maine, Sib H. S. Ancient Law. 

Marriage Order-in-Council, 1838. Ma. O. in C. 

Matthabus, Antonius. De Criminibus. 

Paroemiae Belganim jurisconsultis usitatissimae. Anton. Mam. 

Mebula, Paul. Maniere van Procederen. 

MODDBBMAN, Mr. W. De Receptie van het Bomeinsche Regt. 

Monro, C. H. Dig. xli. 1 (de adquirendo rerum domimo). 

MoMOE, G. T. English and Roman-Dutch Law. 

Moylb, J. B. Imperatoris Justiniani Institutionum Libri Quattuor, 

with Introductions, Commentary, and Excursus. 
MuNNiKS, J. Handleiding tot de hedendaegsche Rechtsgeleerdheid 

(Amsterdam, 1776). 

Nathan, Manfred. The Common Law of South Africa. 

The South African Law of Partnership. 

Neostadius, Corneuus. Observationes rerum judieatarum de pactis. 

ante-nuptialibus. 
Utriusque HoUandiae, Zelandiae, Frisiaeque Curiae Decisiones. 

Supr. Cur. Decis., Decis. van der Hove. 

Ontwerp van het Burgerlijk Wetboek voor het Koningrijk der Neder- 
landen, 1820. Ontwerp. 

Papegay. [See Alphen, van.] 

Perbira, The Hon. J. C. W. The Laws of Ceylon (2nd ed., Colombo, 

1913). Pereira. 
Perpetual Edict of Charles V of October 29, 1540. Perp. Ed. 
Planiol, Marcel. Trait6 616mentaire de droit civil (6™« M.). 
Political Ordinance, April 1, 1680. P. 0. 
Pollock, Sir F. The Law of Torts. 
PoTHiER, R. J. Trait6 des obligations. 
Verhandeling van Ciontracten en andere Verblntenissen met 

Aanmerkingen door J. van der Linden. 

Rechtsgeleerde Observatien, dienende tot opheldering van verscheide . . . 
passagien uyt de Inleidinge tot de Hollandsche Rechtsgeleerdheid 
van H. de Groot (Amsterdam, 1777-8). Rechtsg. Ohs. 

Report of the (British Guiana) Common Law Commission (Georgetown, 
1914). 

Sande, J. A. De actionum cessione. 

De effestucatione. 

Decisiones Frisicae. Decis. Fris. 

Saviony, p. C. von. Das Recht des Besitzes. 



AUTHORITIES CITED xvii 

SOHOBEE, W. Annotations of Grotius' Inleiding tot de Hollandsohe 
Rechtsgeleerdheid (Middelburg, 1767). Sehorer ad Or. 
[See Austen.] 

ScHBASSERT, J. Consultatien. 

Sententien en gewezen zaken van den Hoogen en Provincialen Baad 
in Holland, Zeeland en West-Vriesland (Rotterdam, 1662). 

Sewel, W. Groot Woordenboek (Amsterdam, 1735). 

South African Law Journal. 8. A. L. J. 

Spieqbl, L. p. van db. Verhandeling over den Oorsprong en de 
Historic der vaderlandsche Reohten (Goes, 1769). 

Tacsitxts, p. Coknelius. Agricola. 
Germania. 

Utrechtsche Consultatien. 

ViOAT, P. B. Vocabularium Juris. 

ViNNTOS, Aknoldtjs. In quatuor libros Institutionum Imperialium 

Commentarius academicus et forensis. Vinnius ad Inst. 

Selectae Juris Quaestiones. 

Tractatus de Pactis. 

Vocabularium jurisprudentiae Romanae editum jussu instituti 

Savigniani. 
Voet, Johannes. Commentarius ad Pandectas. Voet. 
Tomus tertius ejusdem Commentarii continens Supplementum 

auotore J. van der Linden. 

Compendium juris juxta seriem Pandectarum. 

Elementa Juris. 

Voet, Paxjltjs. De mobUium et immobilium natura. 

VoKM, H. VAN DEE. Verhandeling van het Hollandsch, Zeelandsoh 

en Westvrieslandsch versterfrecht, 7^ druk, met Aanteekeningen 

door V. J. Blondeel. 
Vbomans, p. Tractaat de foro competenti. 

Wesel, Abraham A. Commentarius ad novellas constitutiones 

Ultrajectinas. 
Wessbls, Hon. J. W. History of the Roman-Dutch Law. 
WiLLE, G. Landlord and Tenant in South Africa. 
WiNDSCHEiD, B. Lehrbuch des Pandektenrechts. 

ZuROK, E. VAN. Codex Batavus. 
Zypaetjs, F. Notitia Juris Belgici. 



1713 



TABLE OF LAW REPORTS WITH MODE 
OF CITATION 



A. C. 



Buch. 



Buch. A. C. 



0. L. J. 




C. P. D. 




C. T. R. 




Ceylon N. 


L. 


Co. Rep. 




Current L, 


, R. 


E. D. C. 





R. 



Appeal Cases (House of Lords and Judicial Com- 
mittee). 
Brit. Gui. L. R. [O.S.]. Law Reports of British Guiana, Old Series. 
Brit. Gui. L. R. [N.S.]. Law Reports of British Guiana, New Series. 
Brit. Gui. Off. Gaz. British Guiana Official Gazette. 

Buchanan, James & B. J. Cases decided in the 

Supreme Court of the Cape of Good Hope. 
Buchanan, James & E. J. & D. M. Cases decided 

in the Court of Appeal of the Cape of Gtood Hope. 
Cape Law Journal. 
Cases decided in the Cape Provincial Division of the 

Supreme Court of South Africa. 
Cape Times Reports. 
Ceylon New Law Reports. 
Sir Edward Coke's Reports. 
Current Law Reports (Ceylon). 
Cases decided in the Eastern Districts Court of the 

Cape of Good Hope. 
Cases decided in the Eastern Districts Local Division 

of the Supreme Court of South Africa. 
Foord, A. J. Cases decided in the Supreme Court 

of the Cape of Good Hope. 
Reports of the High Court of Griqualand West. 
Kotz6, J. 6. Cases decided in the High Court of 

the Transvaal (1877-81). 
Law Reports, Appeal Cases. 
Menzies, Hon. W. Cases decided in the Supreme 

Court of the Cape of Good Hope. 
Natal Law Reports, Supreme Court, New Series. 
New Law Reports (Ceylon). 
Orange River Colony, Reports of Cases decided in 

the High Court. 
Official Reports of the High Court of the South 

African Republic, translated into English by 

W. S. Webber & J. G. Kotz6. 



E. D. L. 



Foord 



H. 


c. 


G. 




K. 








L. 


R. 


App. 


Cas, 


Menz, 






N. 


L. 


R. 




N. 


L. 


R. 




0. 


R. 


C. 





Off. Rep. 



TABLE OF LAW REPORTS xix 

P. Probate Cases in the Probate, Admiralty, and Divorce 

Division of the High Court. 
Ramanathan Ramanathan, P. Judgments of the Supreme Court and 
High Court of Appeal, Ceylon, between 1820-33. 
„ Important Cases, Supreme Court, Ceylon, 1843-55. 

„ Important Cases, Supreme Court, Ceylon, 1860-8. 

„ Important Cases, Supreme Court, Ceylon, 1872, 1875, 

1876. 
„ Reports of Cases, Supreme Court, Ceylon, 1877. 

Searle Searle, M. W. Cases decided in the Supreme Court of 

the Cape of Good Hope. 
South African Law Journal. 
Cases decided in the Supreme Court of the South African 

Republic. 
Supreme Court Reports (Cape of Good Hope). 
Supreme Court Circular (Ceylon). 
Supreme Court Reports (Ceylon). 

Cases decided in the Witwatersrand High Court (Trans- 
vaal). 
T. P. D. Cases decided in the Transvaal Provincial Division of 

the Supreme Court of South Africa. 
T. S. Cases decided in the Transvaal Supreme Court. 

Vanderstraaten, J. W. Decisions, Supreme Court 
Ceylon, in Appeal, 1869-71. 



s. 


A. 


L. 


J. 


s. 


A. 


R. 




s. 


C. 






s. 


C. 


C. 




s. 


C. 


R. 




T. 


H 







1713 b 2 



TABLE OF CASES 



A PAGE 

Abdul Azeezw. Abdul Rahiman (1909) 1 Curr. L. R. 271 ; [1911] 

A. C. 746 . . . . 144, 148 

Abeyesekera v. Tillekeratne . . [1897] A. C. 277 325 

Aburrow v. Wallis (1893) 10 S. C. 214 207 

Administrator- General, ex parte, 

re Estate Alexander . . . . (1890) 1 Brit. Gui. L. R. [N. S.] 6 340 

Alcock V. Du Preez (1875) Buch. 130 244 

Anderson's Assignee v. Ander- 
son's Exors (1894)118.0.432 215 

Anderson & Murison v. Colonial 

Government (1891) 8 S. G. 293 182 

Anon (1871) Vanderstraaten, p. 172 . . 336 

Appuhami v. Appuhami . . . . (1880) 3 S. C. C. 61 . . . . 128, 129 
Appuhami «. Kirihami .. .. (1895) 1 Ceylon N. L. R. 83 275,277 
Attorney-General u. Pitche . . (1892) 1 8. 0. R. 11 184 

B 

Bal V. Van Staden [1902] T. S. 128 V 191 

Bartholomew v. Johnson . . (1901) 22 N. L. R. 79 232 

Bellingham ?;. Bloometje .. (1874) Buch. 36 258 

Bergl & Co. v. Trott Bros. . . (1903) 24 N. L. R. 503 226, 228, 232 

Bergtheil i;. Crowly (1896) 17 N. L. R. 199 .. ..203 

Bert Chunkoo «;. Beechun .. (1912) Brit. Gui. Off. Gaz., vol. 

xxxvi, p. 1437 . . . . 299 

Beukes D. Coetzee (1883) 1 8. A. R. 71 282 

Bezuidenhout J). 8trydom . . (1884) 4 E. D. C. 224 .. ..206 
Black V. Hand-in-Hand Insur- 
ance Co (1892) 2Brit.Gui.L.R.[N. S.]53 252 

Botha u. Brink (1878) Buch. 118 275 

Boyd v. Stables (1821) Ramanathan, 1820-33, p. 

19 262 

Boyes V. Verzigman (1879) Buch. 229 78,85 

Brest & Laden u. Heydenrych (1896) 13 8. C. 17 232 

British Guiana Bank D. Herbert (1904) Brit. Gui. Ofi. Gaz., vol. xx, 

p. 6 223 

Brodie u. Attorney-General .. (1903) 7 Ceylon N. L. R. 81 ..117 

Buisinne !). Mulder (1835) 1 Menz. 162 314 

Burke v. British Guiana Gold Brit. Gui. Off. Gaz., vol. 

Mines, Ltd (1909) xxix, p. 677 . . . . 274 

C 

Cape Government v. Balmoral 

Diamond Co [1908] T. 8. 681 166 

Cape Town & District Water- 
works Co. «;. Elder's Exors. (1890) 8 8. C. 9 116 



TABLE OF CASES xxi 

PAGE 

Carelse w. Estate do Vries ..(1906)23 8.0.532 .. .. 31,273 

Celliers v. Celliers [1904] T. S. 926 99 

Central South African Railways 

V. McLaren [1903] T. S. 727 192 

Chaffer v. Richards (1905) 26 N. L. R. 207 . . . . 232 

Changadoo I). Ramswamy .. (1890) 1 Brit. Gui. L. R. [N. S.] 

231 185 

Changarapilla v. Chelliah . . (1902) 5 Ceylon N. L. R. 270 . . 148 

Chase w. Du Toit's Trustees .. (1858) 3 Searle78 166 

Chaves (Victorina), Re petition Brit. Gui. Off. Gaz., vol. 

of (1912) XXXV, p. 1445 . . . . 73 

Chiappini, In re Insolvent 

Estate of (1869) Buch. 143 95 

Chiwell V. Carlyon (1897) 14 S. C. 61 81 

Chudleigh's Case (1589) 1 Co. Rep. 120 313 

Cloete w. Roberts (1903) 20 S. C. 413 224 

Coaton w. Alexander .. .. (1879) Buch. 17 176 

Colonial Bank v. Representa- 1 Brit. Gui. L. R. (N. S.) 

tives of Werk-en-Rust . . (1890) 130 289 

Colonial Government v. Cape- 
Town Town Council . . (1902) 19 S. C. 87 183 

Commissioners of French Hoek 

V. Hugo (1885) L. R. 10 App. Ca. 336 . . 138 

Commissioner of Public Works 

V. Hills [1906] A. C. 368 232 

Committee of the Johannesburg 

Public Library v. Spence (1898) ,Off. Rep. 84 105 

Corea v. Peiris [1909] A. C. 549 276 

Cottam «;. Speller (1882) 3 N. L. R. 133 272 

Cullinan v. Pistorius . . . . [1903] O. R. C. 33 . . 214, 216, 259 

D 

D. C. Colombo 64687 .. .. (1871) Vanderstraaten 144 ..250 
D. C. Colombo 70260 .. .. (1877) Ramanathan, 1877, p. 89 127 

Daniel v. Daniel (1884) 2 S. C. 231 67 

Daniels v. Cooper (1880) 1 E. D. C. 174 251 

DaSilva, /rare (1904) Brit. Gui. Off. Gaz., vol. xx, 

p. 843 186 

Davis V. Argosy Co., Ltd. . . (1909) Brit. Gui. Off. Gaz., vol. xx, 

p. 5 275 

Dawson ti. Eckstein (1905) 10 H. C. G. 15 180 

De Beers Consolidated Mines v. 
London & S. A. Explora- 
tion Co (1893) 10S.C.359; (1895)12 S.C. 

107 257,258 

De Cairos D. Gaspar (1904) Brit. Gui. Off. Gaz., vol. xix, 

p. 1274 198 

DeFreitas?;. Exor. of Jardim.. (1905) Brit. Gui. Off. Gaz., vol. 

xxii, p. 1193 . . . . 25 

De Jager i;. Scheepers .. .. (1880) Foord 120 133,320 

Demerara Electric Co., Ltd. v. 

White [1907] A. C. 330 273 

De Montfort «;. Broers .. .. (1887) 13 App. Ca. 149 .. ..288 

b3 



XXll 



TABLE OF GASES 



Denyssen v. Mostert 
De Pass v. Colonial Govt. 
Derry v. Peek . . 
De Villiers v. Commaile 
De Villiers v. Stuckeris 
De Villiers v. O'Sullivan 
De Vries v. Alexander 
De Waal v. Adler 
De Wet V. Hiscook . . 
Dias V. Livera . . 
Dodd V. Hadley 
Dolpliin's Intestacy, In re 
Dona Clara v. Dona Maria 
Dormeux v. Kriekenbeek 
Douglas V. Sander & Co. . . 
Dreyer's Trustee v. Lutley 
Duncan v. R. M. Mossel Bay 
Du Plessis V. Estate Meyer 
Dwyer v. Goldseller . . 
Dyason v. Ruthven . . 



. (1872) 

. (1886) 

. (1889) 

. (1846) 

. (1829) 

. (1883) 

. (1880) 

. (1887) 

. (1880) 

. (1879) 

. [1905] 

. (1894) 

. (1822) 

. (1821) 

. [1902] 

. (1884) 

. (1905) 

. (1913) 

. [1906] 

. (1860) 



PAGE 

, 325 
, 245 
, 200 
, 237 
, 62 
, 137 



L. R. 4 P. C. 236 . . 
4 S. C. 383 . . . . 
14 App. Ca. 337 
3 Menz. 544 . . . . 

1 Menz. 377 . . . . 

2 S. C. 251 . . . . 

Foord43 25,259 

L. R. 12 App. Ca. 141 . . 225 

1 E. D. C. 249 114 

L. R. 5 App. Ca. 123 . . 325 

T. S. 439 209 

15N. L. R. 343 .. .. 49 
Ramanathan,1820-33,p.33 336 
Ramanathan,1820-33,p.23 66 

A. C.437 277 

3S.C.59 ..180 

22S. C. 587 64 

S. A. L. J. vol. xxxi, p. 183 314 

T. S. 126 238 

3Searle282 224 



Eastern & S. A. Telegraph Co., 
Ltd. V. Cape Town Tram- 
ways Co., Ltd 

Eaton V. Registrar of Deeds . . 

Eckhardt v. Nolte 

Edgcombe v. Hodgson 

Edwards v. Hyde 

Epstein v. Epstein 

Evans, In re 

Evans, Insolvent Estate of v. 

S. A. Breweries Ltd. . . 
Exors. of Porshaw, re Estate 

Watt 



E 



[1902] A. C. 381 278 

(1890) 7S. C. 249 .. .. ..118 

(1885) 2 S. A. R. 48 . . . . 24, 259 

(1902) 19S. C. 224 207 

[1903] T. S. 381 271, 273 

[1906] T. H. 87 276 

(1903) Brit. Qui. Off. Gaz., vol. 

xviii, p. 1322 . . . . 300 



(1901) 22 N. L. R. 115 . . . . 

2 Brit. Gui. L. R. (N. S.) 

(1892) 116 



181 



174 



Famumw. Administrator-General 

of British Guiana .. .. (1889) 
Eaure v. Tulbagh Divisional 

Council (1890) 

Pern Gold Mining Co. v. Tobias (1890) 

Fernando D. Fernando .. .. (1899) 

Fernando I). Weerakoon .. .. (1903) 

Fichardt v. Webb (1889) 

Pick i;. Bierman (1882) 

Fischer v. Liquidators of the 

Union Bank (1890) 

Fitzgerald i;. Green [1911] 

Fitzgerald v. Green & Steytler [1913] 

Folkard v. Anderson . . . . (I860) 

Francis «. Savage & Hill . . .. (1882) 

Friedlander i;. Croxford .. .. (1867) 



14 App. Ca. 651 



288 



8 S. C. 72 82, 90 

3 S. A. R. 134 191 

4 Ceylon N. L. R. 285 . . 232 
6 Ceylon N. L. R. 212 . . 248 

6C. L. J. 258 143 

2S. C. 26 214,215 

8S. C. 46 289,306 

E. D. L. 433 .. 8,29,30,299 

C. P. D. 403 299 

Ramanathan, 1860-8, p. 58 284 
1 S. A. R. 33 . . . . 173, 174 

5 Searle 395 259 



TABLE OF CASES xxiii 

"■ PAGE 

Galliers v. Rycroft [1901] A. C. 130 317 

Garvie & Co. v. Wright & Donald (1903) 20 S. C. 421 191 

General Ceylon Tea Estates v. 

Pullai (1906) 9 Ceylon N.L.R. 98 257,258 

Gericke v. Keyter (1879) Buch. 147 40 

Gilson V. Payn (1899) 16 S. C. 286 225 

Gledliill, /rare intestate estate of (1891) 12 N. L. R. 43 338 

Godfrey v. Argosy Co., Ltd. . . (1909) Brit. Gui. Off. Gaz., vol. xx, 

p. 65 275 

Goldblat V. Merwe (1902) 19 S. C. 373 225 

Goldschmidt v. Adler . . . . (1884) 3 S. C. 117 225 

Gooneratne v. Don Philip . . (1899) 5 Ceylon N. L. R. 268 . . 203 

Goonewardana v. Rajapakse . . (1895) 1 Ceylon N. L. R. 217 . . 144 

Grassman u Hoffman .. .. (1885) 3 S. C. 282 79 

Greef v. Verreaux (1829) 1 Menz. 151 65 

Green v. Griffiths (1886) 4 S. C. 346 . . . . 142, 259 

Green Point Municipality v. 

Powell's Trustees . . . . (1848) 2 Menz. 380 166 

Greyvensteyn v. Hattingh . . [1911] A. C. 356 270 

Guyadeen t;. Ferguson .. .. (1905) Brit.Gui. Off. Gaz.,vol. xxi, 

p. 782 133 

H 
Hall V. Hall's Trustees & 

Mitchell (1887)3S. C. 3 85 

Hall V. Zietsman (1899) 16 S. C. 213 275 

Haly t). Vieira (1913) Brit. Gui. Off. Gaz., vol. 

xxxvii, p. 511 . . . . 203 
Hansaratch v. Nehaul . . . . (1890) 1 Brit. Gui. L. R. (N.S.) 117 276 

Harris r;. Trustee of Buissinne (1840) 2 Menz. 105 130 

Hasler «;. Easier (1896) 13 S. C. 377 98 

Haupt V. Haupt (1897) 14 S. C. 39 43 

Haupt, Exors of V. de Villiers (1848) 3 Menz. 341 147 

Herbert «;. Anderson .. .. (1839) 2 Menz. 166 .. .. 24,25 

Hermann v. Charlesworth . . [1905] 2 K. B. 123 207 

Hoggv.Butts (1893) 3Brit.Gui.L.R.(N.S.)88 185 

Horak v. Horak (I860) 3 Searle 389 . . . . 29, 100 

Hotz 17. Standard Bank .. .. (1907) 3 Buch. A. C. 53 .. ..206 
Houghton Estate v. McHattie & 

Barrat (1894) 1 Off. Rep. 92 258 

Huree v. Bascom ( 1860) 2 Brit. Gui. L. R. (O.S. ) 37 185 

I 

Ibrahim Saibo v. Oriental Bank 

Corporation (1874) 3 Ceylon N. L. R. 148 . . 314 

Isaac Perera v. Babu Appu . . (1897) 3 Ceylon N. L. R. 48 . . 144 

J 

Jacobs «. Perera (1896) 2 Ceylon N. L. R. 115 ..284 

John D.Trimble [1902] T. H. 146 181 

Johnson «. Mclntyre .. . . (1893) 10 S. C. 318 .. 35,72,73 
Johnston v. Reiser (1879) K. 166 43 



xxiv TABlrE OF CASES 

PAGE 

Jones, /rare (1885) 5 E. D. C. 34 64 

Jooste V. Jooste (1907)24 8.0.329 98 

Josef V. Mulder [1903] A. C. 190 316 

Joubertw. Exor. of Russouw .. (1877) Buch. 21 302 

Judd V. Pourie (1881) 2 E. D. C. 41 153 

K 

Kannappen v. Mylipody . . . . (1872) 3 Ceylon N. L. R. 274 . . 250 
Karonchiliamy v. Angohamy (1904) 8 Ceylon N. L. R. 1 . . . . 26 

King U.Gray (1907) 23 S. C. 554 207 

Knoop, 7mre (1893) 10 S. C. 198 32 

Knox?). Koch (1883) 2 S. C. 382 207 

Kramarski v. Kramarski . . [1906] T. S. 937 277 



Lange v. Liesching (1880) Foord 55 313, 315 

Lazarus t). Dose (1884) 3 S. C. 42 167 

l,ee\xw, ex parte (1905) 22 S. C. 348 337 

Le Sueur «). Le Sueur .. .. (1876) Buch. 153 302 

Lipton V. Buchanan . . . . (1904) 8 Ceylon N. L. R. 49; (1907) 

10 Ceylon KL.R. 158 198 
Liquidator of the British Guiana Brit. Gui. Off. Gaz., vol. 

Ice Co. w. Birch .. .. (1909) xxx, p. 3 .. .. 25,257 

Logans. Beit (1890) 7 S. C. 197 194 

Loudon, In re Insolvent Estate 

of, Discount Bank ti. Dawes (1829) 1 Menz. 380 .. .. 24,174 
Lunke ?;. Demerara Co., Ltd. .. (1906) Brit. Gui. Off. Gaz., vol. 

xxiv, p. 49 . . . . 274 
Luzmoor v. Luzmoor . . . . [1905] T. H. 74 99 



M 

Machattie 4). Eilmer (1894) 1 0. R. 305 .. .. 9 214 

Mackellar t>. Bond (1884) 9 App. Ca. 715 . . .. '265 

Marais v. Smuts (1896) 3 Off. Rep. 158 . . 275 

Mare v. Mare [1910] 0. P. D. 437 33 

Maritz V. Pratley (1894) 11 S. C. 345 . . . " 194 

Mason v. Bernstein (1897) 14 S. C. 504 79 

Maxwell & Earp i'. Dreyer's 

Estate (1908) 25 S.C. 723 54 

McDuling, 7» re (1885) 6 N. L. R. 88 " 75 

McGee v. Mignon [1903] T. S. 89 "203 

McGregor's Trustees v. Silber- 

fcauer (1891) 9 S. C. 36 . . .. 214 

McLoughlm t; Delahunt . . .. (1880) Foord 129 ' 143 

MeiringD.Meiring'sExors. .. (1878) Buch. 27, 3 Roscoe'e '.'. 294 

Melck, Exor. of Burger v. David (1840) 3 Menz. 468 130 

Merrmgton «. Davidson .. .. (1905)22 8.0.148 " ' " 194 

Mitchell v.Leggatt (1904) Brit. Gui. Off. Gaz."," vol. 

xxi, p. 5 207 

MogamatJassiemv. The Master (1891) 8 8. C. 259 .. .'." .' ' 30 



TABLE OF CASES xxv 

PAGE 

Molyneux v. Natal Land and 24 N. L. R. 259 ; [1906] 

Colonization Co (1903) A. 0. 555 ; 26 N. L. R. 

423 104 

Morgan & Ramsay v. Cornelius 

feHoUis (1910) 31N.L.R. 447 .. ..241 

Morkel V. Holm (1882) 2 S. C. 57 215 

Moss r;. Ferguson (1875) Ramanathan, 1872-6, p.l65 276 

Moss V. Moss [1897] P. 263 29 

Mostert v. The Master . . . . (1878) Buch. 83 75, 301 

Mostert's Trustees v. Mostert . . (1885) 4 S. C. 35 92, 93 

Mtembu v. Webster (1904) 21 S. C. 323 198 

MulhoUand v. Smith . . . . (1910) 10 H. C. G. 333 . . . . 272 

Muller V. Chadwick & Co. . . [1906] T. S. 30 163 

Murphy v. London & S. A. 

Exploration Co (1887) 5 S. C. 259 255 

N 

NatalBank,Ltd. V. Rood . . [1909] T. S. 243; [1910] A. C. 

570 101,325 

Natal Bank «. Kuranda .. .. [1907] T. H. 155 9 

Naud6 V. Malcolm (1902) 19 S. C. 482 191 

Nel t;. Divine, Hall & Co. . . (1890) 8 S. C. 16 40 

Nelv. Nel (1841) 1 Menz. 274 100 

Nelson v. Currey (1886)4 8.0.355 295,310 

Niekerk u. Niekerk (1830) 1 Menz. 452 61 

Noel V. Green (1898) 15 C. L. J. 282 192 

Norton u. Spooner (1857) 9 Moo. P. C. C. 103 . . ..277 



Oakv.Lumsden (1884) 2 S. C. 144 264 

Oosthuizen v. Estate of Oosthui- 

zen [1903] T. S. 688 258 

Oukama, ex parte, re Provost 1 Brit. Gui. L. R. (N. S.) 

Martial (1891) 328 186 



Parasatty Ammah v. Settupulle (1872) 3 Ceylon N. L. R. 271 . . 250 

Parker «. Reed (1904) 21 S. C. 496 . . . . 9, 284 

Paterson's Exors. v. Webster, 

Steel & Co (1881) 1 S. C. 350 214 

Peard «. Rennie & Sons .. .. (1895) 16 N. L. R. 175 .. ..192 

Perera v. Sobana (1884) 6 S. C. C. 61 148 

Pereraw.Perera [1901] A. C. 354 297 

PeriaCarpent). Herft .. . . (1886) 7 S. C. C. 182 224 

Port Elizabeth Harbour Board 

V. Mackie, Dunn & Co. . . (1897) 14 S. C. 469 193 

Potgieteri;. Zietsman . . . . (1914) S. A. L. J. vol. 31, p. 351 162 

Prinsloo's Curators bonis v. „„ ,„, 

Crafford & Prinsloo . . . . [1905] T. S. 669 100, 104 

Pullet) Candoe (1875) Ramanathan,1872-6,p.l89 224 

Pulle V. Pulle (1893) 2 S. C. R. 105 289 

Pullenagam v. Fernando . . . . (1900) 4 Ceylon N. L. R. 88 . . 116 



xxvi TABLE OF CASES 

R PAGE 

Rabies. Neebe (1879) O. F. S. 5 -242 

Rabott;.deSilva [1909] A. C. 376 26,67 

Ras V. Simpson [1904] T. S. 254 232 

Raubenheimer v. Exors. of Van 

Breda (1880) Poord 111 337 

Reed's Trustee e. Reed .. . . (1885) 5 E. D. 0. 23 180 

Reeders & Wepener v. Johan- 
nesburg Municipality .. [1907] T. S. 647 258 

Rego V. Cappell (1901) Brit. Gui. Off. Gaz., vol. 

xiii, p. 704 36 

Retief v. Hammerslach . . . . (1884) 1 S. A. R. 171 252 

Reuters. Yates [1904] T. S. 855 224 

Rex V. Patterson [1907] T. S. 619 69 

Richards v. Mils (1905) 15 C. T. R. 447 . . . . 192 

Richards, Slater & Co. v. EuUer (1880) 1 E. D. C. 1 225 

Richter v. Vandeyar . . . . (1907) Brit. Gui. Off. Gaz., vol. 

xxvi, p. 16 284 

Richter v. Wagenaar . . . . (1829) 1 Menz. 262 .... 29, 66 

Riesle K. McMullin (1907) 10 H. C. G. 381 .. .. 40 

Robb «. Mealey's Exors (1889)16 8.0.133 36 

Robertson v. Boyce [1912] A. D. 367 284 

Rolfes, Nebel & Co. v. Zweigen- 

haft [1903] T. S. 185 260 

Rood V. Wallach [1904] T. S. 187 198 

Roorda v. Cohn [1903] T. H. 279 200 

Rooth V. The State (1888) 2 S. A. R. 259 . . . . . . 192 

Rose Innes D. M. Co. v. Central 

D.M.Co (1884) 2H. 0. G.272 190 

Rowel Mudaliyar v. Pieris . . (1895) 1 Ceylon N. L. R. 81 . . 184 

Ruperti's Trustees t;. Ruperti (1885) 4 S. C. 22 91 

Rylands v. Fletcher (1868) L. R. 3 H. L. 330 . . 137, 278 

S 

Saibo V. Cooray (1892) 1 S. C. R. 233 232 

St. Leger v. Town Council of 

Cape Town (1895)12 8.0.249 152 

St. Marc D. Harvey (1893) 10 S. 0. 267 207 

Salmon i;. Lamb's Exors. .. (1906) E. D. 0. 351 156 

Samaradiwakaraw. DeSaram.. [1911] A. 0. 753 321 

Sandeman I). Solomon .. . . (1907) 28 N. L. R. 140 ..206,209 

Sansom u. Foenander .. .. (1872) Ramanathan, 1872-6, p. 32 250 

Scott V. Sytner (1891) 9 S. 0. 50 222, 223 

Seaville u. CoUey (1891)9 8.0.39 .. .. 9,214,272 

SeUar Bros. v. Clark . . . . (1893) 10 S. 0. 168 263 

Serfontein v. Rodrick . . . . (1903) 0. R. 0. 51 300 

Sichel V. De Wet (1885) 5 E. D. C. 68 90 

SUverton Estate Co. ■;;. Bellevue 

Syndicate [1904] T. 8. 462 232 

Simpson v. Forrester . . . . (1829) 1 Kn. P. 0. 231 . . . . 322 

Sivapragasam «. Ayar .. .. (1906) 2 Balasingham 49 .. ..148 

Sloman v. Berkovitz . . . . (1891) 12 N. L. R. 216 . . . . 209 

Smit t?. Russouw (1913) S. A.L.J. vol.xxxi,p. 194 150 



TABLE OF CASES xxvii 

PAGE 

Smith V. Dierks (1884) 3 S. C. 142 168 

Smith V. Smith (1914) S. A. L. J. vol. 31, p. 317 136 

Snook V. Howard (1893) 8 E. D. C. 55 230 

South Africa Association v. 

Mostert (1869) Buch. 231 325 

Spies «. Spies (1845) 2Menz. 476 337 

Standard Bank v. Du Plooy . . (1899) 16 S. C. 161 195 

Staples i;. De Saram .. .. (1867) Ramanathan,1863-8,p.265 288 

Steele v. Thompson (I860) 13 Moo. P. C. C. 280 . . 153 

Stewart ». Hyland's Trustee . . (1907) 24 S. C. 254 166 

Stewart's Trustee v. Uniondale 

MunicipaUty (1889)7 8.0.110 180 

Stiglingh t). French (1892)9 8.0.386 222 

Stilwell, /?i re (1831) 1 Menz. 537 168 

Strickland v. Strickland . . . . [1908] A. 0. 551 323 

Struben v. Oape District Water- 
works Oo (1892)9 8.0.68 136 

SutclifEe V. Sutcliffe & Westgate (1914) S. A. L. J. vol. xxxi, p. 224 277 
Swanepoel «. Van der Hoeven (1878) Buch. 4 147,148 



Taitj;. Wicht (1890)7 8.0.158 200 

Tatham i;. Andree (1863) 1 Moo. P. 0. 0. [N. 8.] 386 174 

Thwaites t;. Jackson .. .. (1895) 1 Oeylon N. L. R. 154 .. 284 
Tikiri Banda v. Gamagedera 

Banda (1879) 3 S. 0. 0. 31 . . . . 257, 258 

Tradesmen's Benefit Society v. 

DuPreez (1887)5 8.0.269 212 

Tregidga & Co. v. Sivewright 

N. O (1897)14 8.0.86 267 

Trotman ?;. de Souza .. .. (1906) Brit. Gui. Ofi. Gaz., vol. 

xxiv, p. 412 . . . . 259 
Trustees of Tritsch v. Berrange 

&Son (1884)3 8.0.217 170 



U 

Ulrich V. Ubich's Trustee . . (1883) 2 S. 0. 319 167 

Umhlebi v. Umhlebi's Estate . . (1905) 19 E. D. 0. 237 193 

Union Government (Minister of 

Railways and Harbours) v. 

Warneke [1911] A. D. 657 274, 277 

V 

VaUiammai v. Annammai . . (1900) 4 Ceylon N. L. R. 8 . . . . 70 

Van Aardt v. Hartley's Trustees (1845) 2 Menz. 135 130 

Van Breda D. Silberbauer . . (1869) L. R. 3 P. 0. 84 .. ..138 
Van der Byl ?;. Solomon . . .. (1877) Buch. 25 .. .. 34,43,65 
Van der Byl v. Van der Byl & 

Co (1899) 16 S. 0. 338 193 

Van der Byl's Assignees v. Van 

der Byl (1886)5 8.0.170 100 



XXVIU 



TABLE OF CASES 



Van der Merwe v. Franck 

Van der Merwe v. Zak River 

Estates, Ltd 

Van der Merwe v. Webb . . 
Van der Walt v. Hudson 
Vandeyar v. Richter 

Van Heerden v. Wiese 

Van Niekerk v. Raubenheimer's 

Bxor 

Van Rooyen v. Werner . . 

Vermaak v. Palmer 

Viljoen v. Hellier 

Vogel & Co. V. Greentley . . 



Ward V. Francis 

Watermeyer v. Kerde's Trustees 
Watermeyer's Exors. v. Water- 

meyer's Exors 

Watson V. MoHattie 

Webb V. Langai 

Webster v. Bosanquet 

Webster v. EUison 

Wells V. Du Preez 

Wijesooria v. Ibrahimsa . . 
Willielm, Insolvent Estate of, v. 

Shepstone 

WiUenburg v. WUlenburg 
Willenburg v. WiUenburg (2) . . 

Williams v. Robertson 

Woeke, In re 

Woolman v. Glensniok 
Wright & Co. V. Colonial 

Government 

Wylde's Will, In re 



PAGE 

. 214 



(1885) 2S. A. R. 26 .. •• 

1914) S.A.L.J.vol.xxxi,p.l95 278 

1883) 3 E. D. C. 97 252 

1886)4 8.0.327 35 

1907) Brit. Gui. Off. Gaz., vol. 

XXV, p. 1485 . . . . 284 
1880) IBuch. A. C. 5.. . ., ..114 

1877) Buch. 51 302 

1892) 9 S.C. 425 . . 33, 34, 35, 48, 49, 220 

1876) Buch. 25 114,138 

1904] T. S. 312 203 

1903) 24 N. L. R. 252 . . . . 43 

W 

1896) 8 H. C. G. 82 241 

1834) 3 Menz. 424 263 

1870) Buch. 69 223 

1885) 2 S. A. R. 28 180 

1885) 4 B. D. C. 68 273 

1912] A. C. 394 232 

1911] i^. D. 73 12, 168 

1906) 23 S. C. 284 206 

1910) 13 Ceylon N. L. R. 195 . . 43 



1878) N. L. R. 1 . . . . 
1909) 3 Buch. A. C. 409 
1908) 25 S. C. 775 ; 3 Buch, 

409 . . . . 
1886) 8 S. C. C. 36 . . 
1832) 1 Menz. 554 . . 
1905) 26 N. L. R. 379 



1891) 8 S. C. 260. 
1873) Buch. 113 . 



.. 223 
.. 35 

A.C. 
72,73 
.. 10 

164, 177 
.. 205 

214,215 
.. 295 



TABLE OF STATUTES. 



I. DUTCH 



1446 
1452 



1462 

1476 

1515 

1524 
1529 
1531 
1540 



1549 
1564 
1570 
1580 
1580 



1582 
1594 



PAGE 
25 



Placaat, October 28 (1 G. P. B. 1470) .... 
Handvestof Philip, Duke of Burgundy, June 11 (3 G. P. B 

586) 141 

Placaat, June 11 (3 G. P. B. 18) 24 

Instructie voor den Stadthouder ende Luyden van de 

Kamer van den Rade (3 G. P. B. 635) ... 2 
Great Privilege of Maria of Burgundy, March 14 (2 G. P. B. 

671) Art. 47 131 

Edict of Charles V, January 22 (1 G. P. B. 363) 24, 141, 259 
Placaat, July 6 (2 G. P. B. 2048) . 
Edict, March 20 (1 G. P. B. 1588) . 
Placaat of Charles V, May 10 (1 G. P. B. 374) 
Placaat, October 16 (2 G. P. B. 2973) . 
Perpetual Edict of Charles V, October 4 (1 G. P. B. 311) 
Art. 6 
Art. 8 



25 

25, 298 

5, 128, 172 

25, 298 

5 

94 

223 

299 

293 

135, 242 

65, 70, 83, 299 

. 135 

Edict of Phihp II, February 21 (1 G. P. B. 387) . . 266 

Code of Criminal Procedure of PhiKp II (2 G. P. B. 1007) . 5 

Code of Civil Procedure (2 G. P. B. 695) ... 6 

Political Ordinance, April 1 (1 G. P. B. 330) 5, 9, 337, 339, 341, 342 

Art. 3 71,-74,75,76 



Art. 12 
Art. 14 
Art. 16 
Art. >7 
Declaration of Charles V, February 14 



Art. 5 

Art. 6 

Art. 7 

Art. 8 

Arts. 8-11. . 

Art. 10 

Art. 13 

Art. 17 

Arts. 19-25 

Art. 28 

Art. 30 

Art. 31 

Art. 35 

Art. 37 
Instructie van den Hoogen 

Art. 23 
Interpretation of the Political 
(1 G. P. B. 342) . 



68 

68' 

68 

68 

68 

69 

72,74 

74 

329 

330 

259 

24, 141 

172, 173, 178 

. 129, 172 

Raad in Holland, May 31, 

288 
Ordinance, May 13 

. 9, 330, 337, 342 



XXX TABLE OF STATUTES 

PAGE 

1598 Placaat der 40»t8 Penning, December 22 (1 G. P. B. 

1953) 129,172 

1599 Plaoaat op 't stuck van de Successien ab intestate, Decem- 

ber 18 (1 G. P. B. 343) 331-335 

Arts. 1, 2 331 

Art. 3 331,335,342 

Arts. 4-8 332 

Arts. 9-10 333 

Arts. 11-12 332 

Arts. 13-14 333 

1612 Plaoaat, March 6 (1 G. P. B. 1957) . . . .129 

1624 Placaat van de Staten van Holland en West Friesland, 

July 30 (1 G. P. B. 375) 314 

1629 Ordre van Regieringe, October 13 (2 G. P. B. 1235) . 7, 339 
1642 Old Statutes of Batavia 334 

1655 Placaat van de Staten van Holland, May 4 (1 G. P. B. 

1592) 25,298 

Plaoaat, October 14 (2 G. P. B. 2419) .... 25 

1656 Echt-Eeglement van de Staten-Generaal, March 18 

(2 G. P. B. 2439) 73 

Art. 83 66 

Art. 85 67 

1658 Placaet van de Staten van Hollandt tegens de Paohters 
ende Bruyckers van de Landen, September 26 
(2 G. P. B. 2515), Arts. 11 and 12 . . 25,257,259 

Art. 13 258 

1661 Octrooi to the East India Company, January 10 . 9, 335, 337, 

339 340 341 342 

1664 Publioatie van de Staten van Hollandt, May 21 (3 6. p'. B. ' 

506) . . .68 

1665 Waerschouwinge van de Staten van Hollandt ende West- 

Vriesland, February 5 (3 G. P. B. 1005) . 24, 173, 174 

1671 Resolutie van de Staten van Holland en West Vriesland, 

March 18 (3 G. P. B. 487) 293 

1674 Placaet van de Staten van Hollandt, July 18 (3 G. P. B. 507) 66 

1677 Placaat, March 29 (3 G. P. B. 672) .... 24 

Edict of the States of Holland and West Friesland, April 3 

(3 G. P. B. 1037) 24,142 

1696 Placaat, February 24 (4 G. P. B. 465) . . 25, 257, 259 

1744 Ordonnantie op het Middel van der veertigsten penning, 

May9, Arts. 9andl9(7G. P. B. 1441) . . .143 

1751 Placaat van de Staaten van Holland, February 25 

(8G. P. B. 535) 67,83,298,299 

1766 New Statutes of Batavia 336 

1774 Resolutions of the States-General, October 4 (Laws of 

Brit. Gui., vol. i, p. 1) 7, 340 

1783 Resolutie van de Staaten van Holland, June 26 (9 G. P. B. 

375) 67 

II. IMPERIAL 

1828 (Brit. Gui.) Order in Council, December 15 ... 5 
1838 Marriage Order in Council, September 7 . . 66, 73 75 76 

1845 Gaming Act (8 & 9 Vic. c. 109) sec. 11 . . . .209 



TABLE OF STATUTES 



XXXI 



1898 Southern Rhodesia Order in Council, October 20 

1908 Companies Act (8 Edw. VII, c. 59) 

1909 South Africa Act (9 Edw. VII, c. 9) 



PAGE 
12 

105 

12 



III. UNION OF SOUTH AFRICA 

1912 Irrigation and Conservation of Waters Act (no. 8) sec. 2 . 114 

1913 Administration of Estates Act (no. 24) : 

Sec. 32 62 



Sec. 56 
Sec. 71 
Sec. 73 
Sees. 76-8 
Sec. 80 
Sec. 82 
Sec. 83 
Sec. 84 
Sec. 85 
Sec. 87 
Sec. 88 
Sec. 107 
Sees. 108-9 



54, 103 
45,49 
47, 49, 52, 62 
49 
50 
52 
51,87 
62 
53 
57, 163 
54 
49 
53 



1714 
1813 
1829 
1833 



1838 



1845 

1846 
1856 
1861 



IV. THE COLONY OF THE CAPE OF GOOD HOPE 

Resolution of the Governor in Council, June 19 . . 337 

Proclamation, August 6 ..... . 144 

Ord. No. 62 37 

Ord. No. 103 47 

No. 105, Sec. 1 45 

Sec. 18 53 

Sec. 25 54 

Marriage Order-in-Counoil, September 7, Sec. 10 . .75 

Sec. 17 73, 75 

Sec. 19 



1865 
1873 



Ord. No. 12 

Ord. No. 15, Sec. 3 

Ord. No. 27, Sec. 1 

Act No. 12, Sees. 1 

Act No. 5, Sec. 2 

Sec. 3 

Sec. 4 

Sec. 5 

Sec. 8 

Sec. 9 



& 2 



Act No. 6 



Sec. 4 
Sec. 6 



Act No. 24 
Act No. 7, Sec. 
Act No. 26, Sec. 
Sec. 



106 
1 

2 



63, 



11 
296 
84 
54 
166 
167 
170 
169 
165, 166, 167 
171,178 
. 135 
. 242 
. 134 
. 263 
132, 153 
. 305 
103, 300 



XXXll 



TABLE OF STATUTES 

















PAGE 


1875 


ActNo.21, Sec.2 ?? 




Sec. 3 . . . 






96 




Sec. 4 






96 




Sec. 7 






. 84 




Sec. 11 . . . 






96 


1876 


Act No. 22, Sec. 2 . . . 






42,302 




Sec. 3 






. 300 




Sec. 4 . . . 






. 51 


1878 
1879 


Act No. 3, Sec. 1 . . . 
Act No. 8 (General Law Amendment) 
Sec. 8 . . . 






. 293 

. 21 

58, 203, 260 


1882 
1892 


Act No. 9 

Act No. 40, Sees. 2 & 4 . 






. 72 
. 69 


1902 


Act No. 36 209 




V. NATAL 


1844 


Letters patent. May 31 ...... 11 


1846 


Ord. No. 4 . 










. 37 


1856 


Royal Charter, July 15 










11 


1863 


Law No. 22, Sec. 2 










81, 338 




Sec. 3 












. 103,300 




Sec. 5 












. 338 


1868 


Law No. 2, Sec. 1 
Sec. 3 
Sec. 6 
Sec. 7 
Sec. 8 
Sees. 9-10 
Sec. 12 












. 296 
. 296 
. 297 
51, 300 
309, 310 
. 309 
. 296 


1871 


LawNo.l7,Seo. 1 












. 103 


1882 


LawNo. 14, Sec. 1 












. 338 


1884 


LawNo.l2,Sec. 1 
Sec.2 












143, 199 
. 143 


1885 


Law No. 7, Sec. 1 
Sec. 2 
Sec. 3 












. 305 
. 305 
. 103 


1896 


Act No. 39 . 












. 11 


1898 


Act No. 45 . 












. 70 



VI. THE TRANSVAAL 

1853 Volksraad Resolution, November 21, Art. 123 
1859 Volksraad Resolution, September 19 
1871 Law No. 3, Sec. 4 

Sec. 8 

Sec. 9 
1895 LawNo.l3,Seo.39 

1901 Procl. No. 34 

1902 Prool. No. 8, Sec. 29 

Sec. 30 
Procl. No. 14 



37 

12 

69 

75 

30 

96 

12,30 

143 

199 

12 



TABLE OF STATUTES 



xxxm 



Procl. No. 28, Sec. 126 



Sec. 127 
Sec. 128 
Sec. 130 



1903 Ord.No.l4,Sec. 1 
Sec. 2 
Sec. 3 
Sec. 4 
Sec. 5 

1908 Act No. 26 . 



Subsec. 1 
Subsec. 2 
Subsec. 3 
Subsec. 4 
Subsec. 5 
Subsecs. 6-9 
Subsecs. 10-11 



PAGE 

. 305 
103, 300 
305 
63 
167 
170 
170 
169 
167 
166 
165 
296 
303 
300 
51 
293 
135, 242 



VII. ORANGE FREE STATE 



1899 
1901 



1902 

1903 
1904 



1906 



Law No. 23 

Law No. 26, Sec. 13 

Law Book, Chap. Ixxxix, Sec 

Chap, xcii. Sec. 1 

Sec. 2 

Sec. 3 
Procl. No. 3 
Procl. No. 6, Sec. 6 
Ord. No. 31, Sec. 1 
Ord. No. 11, Sec. 1 

Sec. 2 

Sec. 3 

Sec. 4 

Sec. 6 
Ord. No. 27 



14 



. 96 
. 3D 
. 37 
103, 300 
. 305 
. 305 
12 
58, 203 
. 69 
. 296 
. 303 
. 300 
. 51 
. 294 
. 69 



VIII. CEYLON 

1799 Proclamation of Governor Francis North, September 23 . 10 
1840 Ord. No. 7, Sec. 2 .... 129,142,153,175,199 

Sec. 3 297 

Sec. 5 309, 310 

Sec. 9 303 

Sec. 10 302 

Sec. 21 199,261,265 

1844 Ord. No. 21, Sec. 1 305 

Sec. 2 297 

1847 Ord. No. 6 66 

1852 Ord. No. 5 10, 20 

Sec. 3 224 

Ord. No. 17 129 

Seel 175 

1863 Ord. No. 8 129 



XXXIV 



TABLE OF STATUTES 



1865 
1866 
1871 



1876 



1887 
1889 
1890 
1891 



1895 
1896 
1907 



1909 
1911 



Old. No. 4 . 
Ord. No. 22 
Ord. No. 8 . 

Sec. 1 
Sec. 3 
.21 
22 
Sec. 3 
Sec. 4 
ll.Secs. 2 & 3 

16, Sec. 8 
Sec. 40 

17, Sec. 2 

. 2 (Civil Procedure Code), 
.5 . 

3, Sec. 2 
, 14, Sec. 16 

Sec. 17 
2, Sec. 22 

. 14 (Evidence Ordinance), 
11 (Sale of Goods) 

Sec. 4 
19 

Sec. 17 

Sec. 21 

Sec. 22 
1 . 
12 



Ord. No, 
Ord. No, 



Ord.No. 
Ord. No. 

Ord.No. 
Ord. No, 
Ord. No, 
Ord. No. 
Ord. No, 

Ord. No. 
Ord. No. 
Ord. No. 

Ord. No. 



Ord. No. 
Ord. No. 



Sees, 



Sec. 112 



640 



PAGE 

. 37 

20, 105, 261, 267 

. 174 

. 175 

. 175 

. 174 

135, 242 

. 132 

. 147 

. 324 

. 81 

. 337 

. 122 

. 181 

. 122 

122 

129, 153, 175 

. 129 

. 31 

29 

21, 251 

. 200 

. 77 

. 70 

64,66 

. 75 

. 120 

. 184 



IX. BRITISH GUIANA 

1732 Octrooi for Berbice, December 6 339 

1744 Resolutions of the States-General, October 4 (Laws of 

Brit. Gui., vol. i, p. 1) 7, 340 

1803 Articles of Capitulation of Essequibo and Demerara, 

September 18 10 

1828 Order in Council, December 15 ..... 5 

1831 Letters Patent constituting the Colony of British Guiana, 

March 4 10 

1832 Ord. No. 1 37 

1838 Ord. No. 8 306 

1839 Ord. No. 3 296 

1844 Ord. No. 17 47 

Ord. No. 18 47 

1846 Ord. No. 3 275 

1856 Ord. No. 1 242 

1864 Ord. No. 6 20, 267 

1887 Ord. No. 9 340 

1893 Ord. No. 11 238 

Sec. 6 58 

1900 Ord. No. 20, Sec. 11 ....... 262 

Rules of the Supreme Court ...... 238 

1901 Ord. No. 25 66, 77 

Sec. 28 66, 70 



TABLE OF STATUTES 



XXXV 





Sec. 30 




Sec. 31 


1903 


Ord.No. 13 




Ord.No. 14 




Ord. No. 36 


1904 


Ord. No. 12 (Married Persons' 




Sec. 6 




Sec. 25 




Sec. 26 


1906 


Ord. No. 12 (Wills Ordinance) 




Sec. 6 




Sec. 7 




Sec. 8 




Sec. 9 




Sec. 10 


1907 


Ord. No. 16 . . . 


1909 


Ord. No. 3 . . . . 




Ord. No. 9, Sec. 1 




Sec. 4 




Sec. 7 




Sec. 9 


1913 


Ord. No. 17 




Ord. No. 26 (Sale of Goods) . 



Property) 



66 

. 340 

81 

. 28 

. 54 

297, 310 
. 303 
. 302 
. 51 
. 305 

103, 300 
. 224 
. 20 
. 340 
. 305 
. 289 
. 306 
. 105 
21,251 



X. SOUTH AFRICAN PROTECTORATES 

1884 Basutoland, Procl. May 29 11 

1907 Swazdland, Procl. February 22 U 

1909 Bechuanaland, Procl. No. 36 12 



GENERAL INTRODUCTION 

The phrase ' Roman-Dutch Law ' was invented by The 
Simon van Leeuwen,^ who employed it as the subtitle of his Duteh"" 
work entitled Paratitula Juris Novissimi, published at Law: 
Leyden in 1652 and republished ta 1656. Subsequently 
his larger and better known treatise on the ' Roman-Dutch 
Law ' was issued under that name in the year 1664. 

The system of law thus described is that which obtained 
in the province of Holland during the existence of the 
Republic of the United Netherlands. Its main principles 
were carried by the Dutch into their settlements in the 
East and West Indies ; and when some of these, namely 
the Cape of Grood Hope, Ceylon, and part of Guiana, at the 
end of the eighteenth and the beginning of the nineteenth 
century, passed imder the dominion of the Crown of 
Great Britain, the old law was retained as the common 
law of the territories which now became British colonies. 
With the expansion of the British Empire in South Africa, 
the sphere of the Roman-Dutch Law has extended its 
boundaries, until the whole of the area comprised within 
the Union of South Africa, representing the four former 
colonies of the Cape of Good Hope, Natal, the Transvaal, 
and the Orange River, as well as the country administered 
by the British South Africa Company tmder the name of 
Southern Rhodesia, has adopted this system as its common 
law. This is the more remarkable since in Holland itself 
and in the Dutch colonies of the present day, the old law 
has been replaced by modem codes ; so that the statutes 
and text-books, which are still consulted and followed in 
the above-mentioned British dominions, in the land of 
their origia are no longer of practical interest.^ 

1 See Journ. Comp. Leg., N.S., vol. xii (1911), p. 548. 

2 On codification in Holland, see a note by Dr. W. R. Bissohop in 
Journ. Cmrvp. Leg., N.S., vol. iii (1901), p. 109. 

1713 B 



2 ROMAN-DUTCH LAW 

Though to indicate in general terms the nature of the 
Roman-Dutch Law is a matter of no great difficulty, pre- 
cisely to define its extent in time or space is not so easy. 
Its origin, Derived from the two sources of Germanic Custom and 
Roman Law, the Roman-Dutch Law may be said to have 
existed, so soon as the former of these incorporated ele- 
ments derived from the latter. Undoubtedly such a process 
was at work from very early times . Long before the Corpus 
Juris of Justinian had been 'received' in Germany, the 
Codex Theodosianus (a. d. 438) had left its mark upon 
the tribal customs of the country now comprised within 
the limits of the kingdoms of Holland and Belgium.^ 
and deve- Later, the various influences of the Frankish Monarchy 
lopment. ^^^ ^j ^j^^ Church and Canon Law^ forged fresh links 
between Rome and Germany. The general reception of 
the Roman Law into Grermany and Holland in the 
fifteenth and sixteenth centuries completed a process, 
which in various ways and through various channels had 
been at work for upwards of a thousand years. ^ 

For many centuries after the dissolution of the Frankish 
Empire there was no general legislation. Under the rule 

^ Van de Spiegel, Verhandeling over den Oorsprong en de Historie der 
Vaderlandsche Rechten, pp. 73-4. 

^ Ibid. p. 110. For some remarks on the part played by the Canon 
Law in the formation of the mature system of R.-D. L. see Kotz6, 
S. A. L. J., vol. xxvi, pp. 510 ff. 

* Mr. Justice Kotz6 says {8. A. L. J., vol. xxvi, p. 492) : ' There is, 
no doubt, a good deal of what is true in this speculation of Van de 
Spiegel that Germanic and Frankish laws and customs formed the 
basis or component parts of the law under the early Dutch Comits ; 
but there is a lack of historical evidence to show that the Boman Law 
ever had any influence in the Northern Netherlands during the Prankish 
regime, or that, in the period from the eleventh to the fifteenth century, 
it was adopted and relied on by the ordinary tribtmals throughout the 
country. The opposite view to this is the more correct.' This very 
learned writer accepts Bjmkershoek's view : Ego vix putem aliquam 
in Hollandia Juris Romani fuisse auctoritatem ante Carolum Auda- 
cem (Observationes Juris Romam, in praefat.). And again (p. 497): 
' Although the Roman Law was known in various ways before the time 
of Charles the Bold, it is clear that B3mkershoek is correct when he 
says that it first received authoritative and legislative recognition in 
1462 {Instructie voor den Stadthovder ende Luyden van de Kamer van 
den Rode, Art. 42, 3 G. P. B. 635) from that Prince '(S.A. L. J., vol. xxvi, 
p. 497). On the other hand, Mr. Justice Wesselg {History of the Roman- 
Dutch Law) supports the view expressed in the text. 



GENERAL INTRODUCTION 3 

of the Counta of Holland the law of that province con- 
sisted principally in general and local customs supple- 
mented to an Tmcertain degree by Roman Law. The 
numerous privileges (handvesten) wrung from the Counts 
by the growing power of the towns only tended to compli- 
cate the law by a multiplication of local anomalies.^ In 
such a state of things it is not surprising that men should 
have resorted to the Roman Law as to a system logical, 
coherent, and complete.^ Later, under Spanish rule, came 
an era of constructive legislation ; but by that time the 
victory of the Roman Law was already assured. 

Prominent amongst the causes which stimulated the Thereoep- 
reception of the Roman Law in this its latest phase was Roman 
the establishment of the Great Council at Mechlin ^ in Law in the 
the year 1473 with jurisdiction over aU the provinces of lands; 
the Netherlands then subject to the Duke of Burgundy. 
This Court, which continued to exist until the War of 
Independence,* did much to assimilate the law in the 
various provinces, and thus exercised a jurisdiction com- 
parable to that of the Judicial Committee of the Privy 
Council or (in a narrower field) of the Appellate Division 
of the Supreme Court of South Africa at the present day. 
Nicholaus Everardus,^ one of our earliest authorities for 
the Roman-Dutch Law, was President of this Court in 
1528.® Perhaps we shall not be wrong, then, if we select 

^ This was particularly the case when, as usually happened, the 
towns enjoyed the privilege of making local regulations (Icewren). 
Wessels, p. 210. 

2 Mr. Justice Kotz6 in 8. A. L. J., vol. xxvi, pp. 407-8. 

^ The Great Council {De Qroote Road) was instituted in the year 1446 
by Philip the Good, Duke of Burgundy and Count of Holland. It was 
fixed at Mechlin by Charles the Bold in 1473, and again by Philip the 
Fair in 1503 (Fruin, OescMedenis der Staatsinstdlingen in Nederland, 
pp. 136-7). The Provincial Court of Holland {tiof van Holland) also 
exercised an important influence in the same direction. See Professor 
Fockema Andreae's edition of Grotius, Inleidinge tot de Hollandsche 
BecM-geleerdheid, vol. ii, p. 8. For a short history of these Courts, 
see Kotz6, S. A. L. J., vol. xxvi, pp. 39 ff. 

* Fruin, p. 255. Its place was taken, as regards HoUand and Zeeland 
only, by the Hooge Baad van Holland {en Zeeland), established in the 
Hague in 1581. Zeeland submitted to its jurisdiction in 1687. 

6 Kotz6, 8. A. L. J., vol. xxvii, p. 29. 

' He had previously been President of the Court of Holland from 1509. 

b2. 



4 ROMAN-DUTCH LAW 

the year of the institution of this tribunal as the startmg- 

point of the system which we laiow by the name of the 

Roman-Dutch Law.'^ 

unequal The reception of the Roman Law was by no means 

i^*li!,„ equally complete in all the provinces of the Dutch 

provinces. Netherlands.^ It was most far-reachmg m J^riesland, 

least so in Overijssel and Drenthe. The other provinces 

lay at various points between these extremes. It follows 

that the laws of no two provinces were precisely the same. 

There is no reason why we should not, if we please, include 

all these systems imder the name of ' Roman -Dutch Law '. 

In practice, however, the phrase is usually applied more 

particularly to the law of the province of Holland. This 

is accounted for partly by the hegemony, constantly 

tending to domination, which Holland exercised over the 

other provinces during the whole continuance of the 

Republic, partly by the fact that the principal writers 

upon the romanized law of the Dutch Netherlands 

belonged to this province. 

The ex- If we ask to what extent the Roman Law was received in 

tent of the ^j^g Netherlands in general and in the province of Holland 

reception ° ^ 

matter of in particular, we incur the risk of taking sides in a contro- 
versy? versy of rival schools.^ There are those who regard 
Grotius, Van Leeuwen, Voet, and the other romanists as 
traitors to the law of their country, wliich, it is inferred, 
they enslaved to an alien system. So far as the issue is 
purely historical the present writer does not offer an 
opinion. For the lawyer, he submits, the question is not 
what the law was when these jurists wrote, but what it 
was when they had written. In the history of institutions 
it is sometimes more important to know what was thought 
to be true than to know what was true in fact. At all 
events, no one disputes the fact of the reception of the 

1 If we adopt Mr. Justice Kotz6's view (swpra, p. 2, n. 3), we shall 
date it from 1462. 

2 Kotz6, 8. A. L. J., vol. xxvi, pp. 503 fE. 

* See, on the whole subject, the valuable tract of the late Pro- 
fessor Modderman, De Beceptie van het Eomeinsche RecM (Gronineen. 
1874). 



versy. 



GENERAL INTRODUCTION 5 

Roman Law. What is questioned is the degree to which 
the reception went. For our part, we shall be content 
to accept the dictum of Van der Linden : ' In order to 
answer the question what is the law in such and such 
a case we must first inquire whether any general law of 
the land or local ordinance {plaatselijke keur) having the 
force of law or any well-established custom can be found 
affecting it. The Roman Law as a model of wisdom and 
equity ia, in default of such a law, accepted by us through 
custom in order to supply this want.' ^ The limits of this 
acceptance are defined by Van der Keessel in a series of 
theses ^ which Professor Fockema Andreae recognizes 
to be substantially correct.^ 

During the period of Spanish rule legislation became Legisla- 
active. Many useful measures were promulgated by gpai^i^' 
Charles V, such as the Placaat of May 10, 1529/ relating rule. 
to the transfer and hypothecation of immovable property, 
and, above all, the Perpetual Edict of October 4, 1540.^ 
In 1570 his son Philip II issued a Code of Criminal Pro- 
cedure,* which regulated the practice of the Dutch 
Colonies until superseded by the humaner provisions of 
the English Law.'' The Political Ordinance of April 1, 
1580,® though enacted by the States of Holland and West 
Friesland, not by the States-General, must also be men- 
tioned as one of the formative elements of the modern 

^ Van der Linden, Bechtsgeleerd, Practicaal, en Koopmans Handboek 
(translated by Sir Henry Juta, under the name of Institutes of Holland), 
lib. I, cap. i, sec. 4. See also Gr. 1. 2. 22 ; Van Leeuwen, 1. 1. 11. 

2 V. d. K. Th. 6-23. 

2 Inleidinge tot de Hollandsche Rechts geleerdheid, beschreven bij H%Lgo 
de Groot, met aanteekeningen van Mr. 8. J. Fockema Andrem, Hoogleeraar 
te Leiden (tweede uitgave), Amhem, 1910, vol. ii, p. 9 ; Kotz6, ubi 
sup. at p. 508. 

« 1 G. P. B. 374. 

^ 1 G. P. B. 311. Wessels (p. 218) summarizes its contents. 

6 2 G. P. B. 1007 ; Wessels, p. 373 : ' The statute of 1570 regulated 
the procedure in the lower Courts. The same procedure was followed 
in the Supreme Court of Holland except in so far as it was modified 
by the rules of that Court.' 

' It remained part of the Law of British Guiana until 1829, when 
it was superseded by Rules of Criminal Procedure made under the 
authority of an Order in Council of December 15, 1828. 

8 1 G. P. B. 330. Wessels (p. 222) summarizes its contents. 



ROMAN-DUTCH LAW 



The 

Roman - 
Dutch 
Law in 
Holland. 



The 

Roman- 
Dutch 



law. The Civil Procedure of all the Courts was regulated 
by another Ordinance of the same year and day.^ 

The history of the Roman -Dutch Law during the 
existence of the Dutch Republic is for our present purpose 
the history of the authorities from whom we derive our 
knowledge of it. To these we shall presently refer. In 
the home of its origin the Roman-Dutch Law as a separate 
system survived by a few years the dissolution of the 
Republic of the United Netherlands. 3Ji 1809 it was 
superseded by the Napoleonic Codes, which in turn gave 
place in 1838 to the existing codes in force in the kingdom 
of the Netherlands. Van der Linden, the latest writer on 
the old law, was also the earliest writer on the new. When 
the old system crumbled beneath his hands he left unfin- 
ished his projected Supplement to Voet's Commentary 
upon the Pandects ; ^ applying his tireless industry in 
a new field, he became to his countrymen the interpreter 
of the laws of their conqueror.* The existing Dutch Civil 
Code, however, in many respects reverts from the rules 
of the French law to the earlier law of Holland. 

Having said thus much of the Roman-Dutch Law in 
general, we shaU proceed next to speak more particularly 
of its history in the Roman-Dutch Colonies,* for by that 
name we may conveniently indicate the British possessions 
in which this system obtains. After that we shall go on 
to speak of the sources from which our knowledge of the 
Roman-Dutch Law is derived. 

The two great trading companies of East and West, 
the Dutch East Lidia Company incorporated in 1602, 

] 2 G.P. B. 695. See Wessels, Hist. R.-D.L., p. 186; Aa annotated 
edition of this Ordinance by Willem van Aller was published at 
Middelburg in 1664. 

^ Johannis Voet, Commentarii ad Pandectas, tomua tertius : ejusdem 
commentarii continens supplementum, auctore Joanne van der Linden. 
Seotio prima, a libro I usque ad XII Pandeotarum, Trajecti ad 
Ehenum, 1793. 

^ In his Beredeneerd register op het wetboek Napoleon ingerieht voor 
het Koningrijk Holland (-Amsterdam, 1809), and other ytoAB. 

' See an article by the present writer on ' The Fate of the Roman- 
Dutch Law in the British Colonies,' Joum. Gomp. Leg., N.S. vol. vii 
( 1906), p. 356, which, by kind permission, is partly reproduced in the text. 



GENERAL INTRODUCTION 1 

and the Dutch West India Company incorporated in Law in 
1621, carried the Roman-Dutch Law into their settlements. ColoSes?"^ 
The Cape was occupied by Van Riebeek in 1652. The 
maritime districts of Ceylon were won from the Portuguese 
in 1656. The Dutch settlements upon the ' Wild Coast ' 
of South America, which came to be known as Guiana, 
date from the . early years of the seventeenth century. 
How far the statutes of the mother country were in force How far 
in these Colonies the evidence hardly allows us to say. statute" 
On principle they would not apply \mless expressly de- Law was 
clared to be applicable, or at least unless locally promul- the Colo- 
gated ; ^ but some may have been accepted by custom as '"^^• 
part of the common law.^ As regards laws of the patria 
passed subsequently to the date of settlement it may be 
thought that the burden of proof lies on him who alleges 
their application. The fact is that the States-General 
legislated but seldom for the Colonies, having delegated 
their functions in this regard to the two Chartered Com- 
panies of East and West. These acted through their 
Committees, the Councils of XVII and the Council of X 
respectively ; and the East India Company also, through 
its Governor-General in Batavia, issued rules for the 
government of the various stations, which, if locally 
promulgated, had binding force until superseded or 
forgotten.^ In addition to these there were the enact- 
ments of the local governors. Failing all the above and 
any colonial custom having the force of law, recourse was 
had to ' the laws statutes and customs of the United 
Netherlands ' and, where these were silent, in the last 

1 As to the necessity of promulgation see Gr. 1. 2. 1, and Groenewegen 
and Schorer, ad loc. ; Van Leeuwen, 1. 3. 14 ; V. d. K. Th. 1. 

2 See Appendix to this Chapt'er (infra, p. 24). 

^ The collected edition of the Statutes of Batavia of 1642 seems to 
have been promulgated at the Cape in 1715. Burge, Colonial and 
Foreign Laws (New Edition), vol. i, p. 115. Governor van der Parra's 
New Statutes of Batavia of 1766 were never recognized by the States- 
General and had not strictly the force of law. The law in force in the 
West Indies was defined by the Ordre van Begeeringe of October 13, 1629 
(2 G. P. B. 1235 ; Burge, vol. i, p. 119), and later by the resolutions of 
the States-General of October 4, 1774 {Laws of Brit. Oui., ed. 1905, 
vol. i, p. 1 ; Burge, vol. i, pp. 121 ff.). 



8 ROMAN-DUTCH LAW 

resort to the Law of Rome.^ It may be supposed, since 
the Dutch Colonies stood in no peculiar relation to the 
province of HoUand more than to any other provinces of 
the Union, that even general customs of this province 
had no preferential claim to acceptance in the Colonies. 
In theory this is true. In practice, perhaps, the pre- 
dominant partner carried the day. In South Africa at 
all events there seems to be some presumption in favour 
of the admission of a general custom of HoUand rather 
than that of any other province as part of the common 
law of the Colony.^ 
The The Dutch settlements of the Cape of Good Hope, 

Duteh" Ceylon, and Guiana, passed into the hands of the British 
Law in at the end of the eighteenth and the beginning of the 
^es^nder nineteenth century. The Cape was taken from the Dutch 
British iji 1795, given back in 1803, and retaken in 1806, since when 
, , ^j. j,jjg it has remained part of the British Dominions. It does 
Cape ; not appear that any express stipulation was made upon 
the occasion of either the first or the second cession for 
the retention of the Roman-Dutch law. Its continuance 
is the expression of the settled principle of English law 
and policy that colonies acquired by cession or by conquest 

* Burge, vol. i, p. 116. 

2 Per Kotz6 J.P., in Fitzgerald v. Green [1911] E.D.L.at p. 493: 
'There is no rule which makes it incumbent upon us, under 
the circumstances, to adopt the law of North Holland in prefer- 
ence to that of South Holland, although in a conflict between 
the law of the different provinces of the Netherlands the Courts 
in South Africa, we are told, have generally followed that of the 
province of Holland.' Dr. Bisschop (Burge, Colonial and Foreign Laws 
(2nd. ed.), vol. i, p. 91) directs attention to the preponderating influ- 
ence in the affairs of the Company of the Chambers of Amsterdam and 
Middelburg, which accounts for the fact that the Company was held to 
be domiciled within the jurisdiction of the Court of Holland. The same 
writer has observed elsewhere that the Colonial Courts in most cases 
got their law, so far as it was not comprised in local statutes and cus- 
toms, from text-books rather than from the original sources, with the 
result that ' the local law of the Netherlands — so far as it was not 
referred to by writers on the Roman-Dutch Law — would be ignored '. 
' In the Dutch East and West Indies the same method of legal applica- 
tion and interpretation would be followed as in the Low Countries, viz., 
to apply first the local statutes and customs and subsidiarily the Roman 
law as explained by the learned jurists at home.' Law Quarterly 
Review, vol. xxiv (1908), p. 169. 



GENERAL INTRODUCTION 9 

retain their old law, so long and so far as it remains unre- 
pealed. In a system derived from the Civil Law repeal may 
be effected tacito consensu as well as alia postea lege lata ; 
so that as regards the Cape Province we may state the 
presumption to be that, except so far as they have been 
abrogated by legislation or by the growth of a custom 
inconsistent therewith, the laws which obtained under the 
Dutch Grovemment remain in force at the present day.^ 
Custom, however, seems to have made short work with 
the pre-British statute law of the Colony. The earliest 
collected edition of the local statutes (1862) contains 
only nine enactments prior to 1795, and the latest edition 
(1895) only five. The remainder of the Dutch placaaten, 
reglementen, advertissementen, &c. (whether emanating from 
the home country or from Batavia, or locally enacted) 
seems to have been abrogated by disuse. We are speaking, 
of course, of the statute law subsequent to 1652, the date 
of the Dutch occupation of the Cape. The home legislation 
prior to that date may, unless inapplicable or abrogated 
by disuse, be regarded as forming part of the common 
law of the Colony. An exception, too, must be admitted 
in favour of the Octrooi to the East India Company of 
January 10, 1661, which, together with the Political 
Ordinance of 1580 and the Interpretation thereof of 1594, 
defines the law of intestate succession for the whole of 
Roman-Dutch South Africa. 

^ Per de ViUiers C.J. in Seaville v. Colhy ( 1891) 9 S. C. at p. 44 : ' The 
conclusion at which I have arrived as to the obligatory nature of the body 
of laws in force in this Colony at the date of the British occupation 
in 1806 may be briefly stated. The presumption is that every one of 
these laws, if not repealed by the local legislature, is still in force. This 
presumption will not however prevail in regard to any rule of law 
which is inconsistent with South African usages. The best proof of 
such usage is furnished by un-overruled judicial decisions. In the 
absence of such decisions the Court may take judicial notice of any 
general custom which is not only well-established but reasonable in 
itself. Any Dutch law which is inconsistent with such well-established 
and reasonable custom, and has not, although relating to matters of 
frequent occurrence, been distinctly recognized and acted upon by the 
Supreme Court may fairly be held to have been abrogated by disuse.' 
This principle applies alike to the statute law and to the common law 
of Holland. See also Parker v. Reed (1904) 21 S. C. 496; McHattie 
V. Filmer (1894) 1 O. B. 305 ; Natal Bank v. Kuranda[l201] T. H. 155. 



10 ROMAN-DUTCH LAW 

(b) In In Ceylon the continuance of the Roman-Dutch Law 
Ceylon; was guaranteed by the Proclamation of Governor the 

Honourable Francis North of September 23, 1799, which 
declared that the administration of justice and police 
should ' henceforth and during His Majesty's pleasure be 
exercised in all Courts of Judicature, Civil and Criminal, 
according to the laws and institutions that subsisted 
under the ancient government of the United Provinces 
subject to such deviations and alterations as have been 
or shall be by lawful authority ordained and pubhshed '} 
The central portion of the island did not pass under British 
rule until 1815, but the Dutch Law was applied to this 

(c) In region also by Ord. No. 5 of 1852.^ In Guiana the existing 
aSana. ^^^® ^^^ usages Were expressly retained in the articles 

of capitulation of Essequibo and Demerara dated Septem- 
ber 18, 1803. A similar provision is contained in the 
Letters Patent of March 4, 1831, by which the three 
settlements were constituted a single colony under the 
name of British Guiana^. 
General "'■* ^esults from what has been said that the foundation 
result. of the law of Cape Colony is the Dutch Law as it existed 
in that settlement in the year 1806 ; that the law of Ceylon 
is based upon the Roman-Dutch system administered in 
the island in 1796 ; * and that the law of British Guiana 
rests upon a substructure of Dutch laws and usages 

''■ It has been doubted whether the Dutch ever applied their law to 
the native races of the low country. But since the British occupation ■ 
the low-country, Sinhalese have had no distinctive law of their own, and 
have always been treated as subject to the Roman-Dutch law. 

^ This Ordinance extends to the Kandyan provinces certain specified 
branches of the law of the Maritime Provinces, and further enacts that if 
the Kandyan Law is silent on any matter the law of the Maritime 
Provinces is to be applied. It says nothing as to the general law 
applicable to Europeans or low-country Sinhalese residing in the 
Kandyan provinces. The extension to them of the Roman-Dutch 
Law in general seems to be the work of judicial decisions (see Williams 
V. Robertson (1886) 8 S. C. C. 36). 

' For the history of the Roman-Dutch Law in British Guiana see 
Report of the Common Law Commission (Georgetown, Demerara, I9I4) 
and ' Roman-Dutch Law in British Guiana ' {Joum. Comp. Leg., N.S., 
vol. xiv (1914), p. 11), by the present writer. 

^ The capitulation of Colombo to the British is dated February 15 
of that year. 



GENERAL INTRODUCTION 11 

having authority in the settlements of Essequibo, 
Demerara, and Berbice in the year 1803. 

It remains to speak of the geographical extension of 
the Roman-Dutch Law in South Africa. 

So long as the boundaries of Cape Colony enlarged Geograph- 
themselves by gradual and inevitable advance, so long gion^of'^"' 
the Dutch civil law extended its sphere by the same ^^^ 
natural process of expansion without express enactment. Dutch 
But before the middle of the last century the era of ^\^ 
annexation had begun. Africa. 

Natal was annexed to the Cape by Letters Patent of Natal. 
May 31, 1844, and this was followed by Cape Ordinance 
No. 12 of 1845, confirming the Roman-Dutch Law in and 
for the district of Natal. This remains the common law 
of the Colony, which was called into existence as a separate 
entity by Royal Charter of July 15, 1856 ; and now the 
Natal Act No. 39 of 1896 provides that : ' The system, 
code, or body of laws commonly called the Roman-Dutch 
law as accepted and administered by the legal tribunals 
of the Colony of the Cape of Good Hope up to August 27, 
1845, and as modified by the Ordinances, Laws, and Acts 
now in force, heretofore made or passed in this Colony 
by the Governor or Legislature thereof, is the law for the 
time being of the Colony of Natal, and of His Majesty's 
subjects and all others within the said Colony '. 

The law of Natal, with some reservations, obtains also Zululand. 
in Zululand, which became part of Natal on December 30, 
1897. 

Li Basutoland, by proclamation dated May 29, 1884, Basuto- 
the law to be administered (save between natives) is, as 
nearly as the circumstances of the cotmtry permit, the 
same as the law for the time beiag in force in the Colony 
of the Cape of Good Hope ; but Acts of the Cape Legislature 
passed after the date of the Proclamation do not apply. 

By Proclamation No. 36 of 1909, the law of Cape Colony Beohuana- 
is to be administered, as far as practicable, in the Bechuana- teotorate. 
land Protectorate to the exclusion, however, of subsequent 
Cape statutes. 



12 



ROMAN-DUTCH LAW 



Southern 
Rhodesia. 



Transvaal 

and 

Orange 

Free 

State. 



Swazi- 
land. 



The 

Union of 
South 
Africa. 



By the Southern Rhodesia Order in Council of October 
20, 1898, s. 49 (2), the law of Cape Colony as it stood 
on June 10, 1891, applies in Southern Rhodesia, except 
so far as that law has been modified by any Order in 
Council, Proclamation, Regulation or Ordinance in force 
at the date of the commencement of the Order. 

In the Repubhcs the Roman-Dutch Law remained in 
force almost unaltered up to the date of annexation.^ 
It is continued in the Orange River Colony (now, 
once more, the Free State) by Proclamation No. 3 
of 1902, s. 1, and in the Transvaal by Proclamation 
No. 14 of 1902, s. 17. But in each of the new Colonies 
extensive alterations have been made so as to bring the 
law into closer harmony with the system obtaining in 
the adjoining territories. 

By Proclamation of February 22, 1907, the Roman- 
Dutch common law, save in so far as the same has been 
modified by statute, is law in Swaziland. 

By the South Africa Act, 1909 (9 Edw. 7, ch. 9), which 
took effect on May 31, 1910, the four Colonies of the 
Cape of Good Hope, Natal, the Transvaal, and the Orange 
River Colony ^ were vmited in a Legislative Union under 
one Government under the name of the Union of South 
Africa (s. 4), and became original provinces of the 
Union under the names of Cape of Good Hope, Natal, 
Transvaal, and Orange Free State respectively. Subject 
to the provisions of the Act, all laws* in force in the several 
Colonies at the estabUshment of the Union are continued in 
force in the respective provinces until repealed or amended 
by the Parliament of the Union, or by the provincial 

^ A resolution of the Volksraad of the South African Republic of • 
September 19, 1859, gave statutory authority to the legal treatise of 
Van der Linden, vrhich, failing the commentaries of Simon van Leeuwen 
and the Introduction of Hugo de Groot, were to be binding. This quaint 
enactment was repealed by Tr. Prool. No.34 of 1901. 

2 On annexation to the British Crown (May 31, 1902), the Orange 
Free State became the Orange River Colony. 

* ' By the word Laws in that section the Legislature meant Statutes, 
and never intended that the section should apply to Judge-made Law.' 
Webster v. Ellismi [1911] A. D. at p. 99, per Solomon J. 



tises. 



GENERAL INTRODUCTION 13 

Councils in matters in respect of which the power 
to make ordinances is reserved or delegated to them 
(s. 135). 

The last portion of this Introduction relates to the The 
authentic sources of the Roman-Dutch Law, which are of^^e^ 
also the primary sources of our knowledge of that system. Boman- 
These are : La^. 

1. Treatises. 

2. Statute Law. 

3. Decisions of the Courts. 

4. Opinions of Jurists. 

5. Custom. 

I. Treatises} The numerous works of the Dutch i. Trea- 
jurists, written in Dutch and Latin at various dates 
from the sixteenth to the nineteenth centuries, are cited 
to-day as authoritative statements of the law with which 
they deal. A modem text-book has no such authority. 
The rules therein expressed are merely opinions which 
Counsel in addressing the Court may, if he pleases, incor- 
porate in his argument, but which have no independent 
claim to attention, however eminent their author. The 
works of the older writers, on the contrary, have a weight 
comparable to that of the decisions of the Courts, or of the 
limited number of ' books of authority ' in English Law. 
They are authentic statements of the law itself, and, as 
such, hold their ground until shown to be wrong. Of 
course the opinions of these writers are very often at 
variance amongst themselves or bear an archaic stamp. 
In such event the Courts will adopt the view which is 
supported by authority or most consonant with reason ; 
or will decline to follow any, if all of the competing 
doctrines seem to be out of harmony with the conditions 
of modem life ; or, again, will take a rule of the old law, 
and explain or modify it in the sense demanded by 
convenience. 

1 For a bibliography of Eoman-Dutch law books see The Com- 
mercial Laws of the World, vol. xv— South Africa — pp. 14 fi. 



14 ROMAN-DUTCH LAW 

Writers of The principal writers on the old law and their principal 
*'^^ works are the following : 

seven- ° 

teenth 

century, SEVENTEENTH CeNTTJRY 

H. DE Groot. Inleiding tot de Hollandsche Rechts- 
geleertheyd ('s Gravenhage, 1631); the same with notes 
by Groenewegen (1644) ; the same with added and 
more extensive notes by W. Schorer (1767).^ This is the 
best old edition. The best modem edition is that with 
historical notes by Professor Fockema Andreae. There 
is a translation by Sir A. F. S. Maasdorp. 

Arnoldtts Vinnitjs.^ Commentarius in IV libros 
Institutionum Imperialium (1642). This well-known work 
contains copious references to the jus hodiernum'. The 
best edition is that with notes by the Prussian jurist 
Heineccius, 

S. VAN Groenewegen van der Made edited the 
Inleiding of Grotius in 1644. In 1649 he produced his 
well-known Tractatus de legibus abrogatis et inusitatis in 
Hollandia vicinisque regionibus, in which he goes through 
the whole of the Corpus Juris by book and title and 
considers how far it has been received or disused in the 
modem law. 

Simon van Leexjwen published his Gensura Forensis in 
1662, and his Boomsch Hollandsch Recht in 1664.^ The 

' In the early editions of Grotius the paragraphs are not numbered. 
Van Leeuwen cites Grotius by book, chapter, and the initial words of 
the paragraphs, e.g. Grot., Introd., lib. 1, cap. 5, vers. Alle Mondigen. 
Voet makes the numeration of Groenewegen's notes do duty for para- 
graphs. Thus : Hugo Orotitis manvduct. ad Jurisprud. HoU. Libr. I, 
cap. 5, num. 13 (=Gr. I. 5. 9). The division of the chapters into 
paragraphs was first employed in an edition of the ' Inleydinge ' pub- 
lished at Amsterdam by Ian Boom in 1727. I am indebted for this 
information to Mr. Justice Kotz6. 

2 Wessels, Hist. R.-D. L., p. 294. 

" The title-page of this work and of its precursor, the Paratitula, 
affords an interesting indication of the uncertainty of seventeenth- 
century spelling. The first edition of the Paratitula has for its sub- 
title Een hort begrip van het Rooms-Hollandts-Reght. In the second 
edition this becomes Een hort begrip van het Rooms-Hollands-Recht. 
The first edition of the later work is described as Het Rooms-Hollands- 
Regt. Lastly, in Decker's edition (1780) we have Roomsch Hollandsch 
Recht, and this I have followed. 



GENERAL INTRODUCTION 15 

last-named work was an amplification of a slighter treatise 
called Paratitula Juris Novissimi published in 1652 and 
again in 1656. The best edition of the Roomsch Hollandsch 
Recht is that with notes by W. Decker issued in 1780. 
This last-named edition has been translated with additional 
notes by Mr. Justice Kotze. 

Uleik Huber issued the first volume of his Praelectiones 
Juris Civilis, containing his commentary on the Institutes 
of Justinian, in the year 1678. This was followed after 
a considerable interval by his commentary on the Digest 
in two additional volumes. The best edition is that of 
J. Le Plat of Louvain issued in 1766. The same author 
published in 1686 his treatise entitled Heedensdaegse 
Rechtsgeleertheyt, soo elders, als in Frieslandt gebruikelyk. 
The last-named work, though principally concerned with 
the law of Friesland, not of Holland, is a valuable con- 
tribution to the study of the Roman-Dutch Law. It was 
edited after the author's death by his son Zachabias 
HiTBER, who, like his father, was a Judge of the Frisian 
High Court. 

Johannes Vobt. Commentarius ad Pandectas. This 
work was published simultaneously at the Hague and at 
Leyden in 1698 and 1704 in two volumes folio. It has 
gone through innumerable editions. The best is the 
Paris edition of A. Maurice of 1829, which is free from 
most of the misprints which disfigure the folio editions. 
The whole of Voet has not been systematically translated 
into Enghsh,^ but translations varying in merit are procur- 
able of many of the separate titles. In 1793 Van der Linden 
published, in folio, a Supplement to Voet's Commentary. 
It extends only to Book xi of the Pandects. Amongst the 
lesser works of Voet may be mentioned his Compendium of 
the Pandects, which, though originally issued before the 
larger work, serves the purpose of an analysis of it. A 
little book in Dutch published in the eighteenth cen- 
tury under the name of De beginselerl des rechts volgens 

^ I am told that there is an Italian translation, which I have 
not seen. 



16 ROMAN-DUTCH LAW 

Justinianus is a translation from the Latin of Voet's ana- 
lysis of the Institutes {Elementa Juris), supplemented with 
a translation of those passages in Vinnius' Commentary 
in which reference is made to the modem law. 



Eighteenth Century 

Writers CoKNELis VAN BiJNKBRSHOEK is beyond Controversy 

°j *^^ the most eminent Dutch jurist of the eighteenth century. 

teenth He was President of the Supreme Court of Holland, 

century. 2eeland, and West Friesland from 1724 to 1743. For our 

present purpose the most useful of his works is the 

Quaestimies Juris Privati, published in Latin in 1744, and 

in a Dutch translation in 1747. 

Mention has already been made of Schokbr's edition 
of Grotius (1767) and of Decker's edition of Van Leeuwen 
(1780). A Dutch translation of Schorer's notes on Grotius, 
which contains also additional matter supplied to the 
translator by the author, appeared from the hand of 
J. E. Austen in 1784-6. This is the edition referred to 
in the margin of Professor Fockema Andreae's edition of 
Grotius 

A useful work was published by Van der Linden and 
other jurists in 1776 under the name of Bechtsgeleerde 
Observatien, dienende tot opheldering van verscheide duistere, 
en tot nog toe voor het grootste gedeelte onbewezene passagien 
uyt de Inleidinge tot de Hollandsche Bechtsgeleertheid 
van wylen Mr. H. de Groot. 

D. G. Van der Keessel, a Professor at Leyden, issued 
in the year 1800 his Theses Selectae juris Hollandici et 
Zelandici ad supplendam Hugonis Grotii Introductionem 
ad Jurisprudentiam Hollandicam. The work was reprinted 
in 1860. There is a translation by C. A. Lorenz. The 
Dictata in which the author of the Theses expanded and 
supported them still circulate in manuscript, but have 
never been printed. There is a fine MS. copy in the Uni- 
versity Library at Leyden corrected in Van der Keessel's 
own hand. I am told that the author's own manuscript 



GENERAL INTRODUCTION 17 

is in the Bar Library at Colombo. A typewritten copy 
of the Leyden MS. was presented to the Supreme Court 
Library at Capetown by the late Dr. C. H. van Zyl. 

Joannes van dbr Linden is the last of the old text- 
writers. In 1794 he published his Verhandeling over de 
judicieele practijcq, which is stiU consulted. But his best- 
known work is his Introduction to Roman-Dutch Law, 
issued in 1806 under the name of Begtsgeleerd, Practicaal, 
en Koopmans Uandboek. The book is very elementary, 
but has enjoyed great favour amongst students, particu- 
larly in Sir H. Juta's translation entitled Institutes of 
Holland. Another work by the same author which may 
be mentioned (besides his Supplement to Yoet referred 
to above) is his Dutch translation of Pothibr on Obliga- 
tions with short notes from his own hand (1804-8). 

If the student wishes to supplement the above-men- 
tioned list of books with a handy law dictionary he will 
find Boby's Woorden-tolk easily procurable and some- 
times useful. Keesteman's larger work (1768) and the 
supplementary volumes by Lucas Willem Kramp ^ enjoy 
a reputation which is scarcely merited. The collection of 
pleadings by Willem van Alphen known by the quaint 
name of Papegay (originally published in 1642) is deserv- 
edly famous. If Van der Liuden's work on Procedure 
proves inadequate, reference may be made to Paul 
Mbexjla's Manier van Procederen, the last and best 
edition of which, imder the names of Didericus Lulius 
and Joannes van der Linden, was issued in the years 
1781-3. 

II. Statute Law. The enactments of the States-General a. statute 
and of the States of Holland and West Friesland are to ^*^" 

be found in the ten folio volumes of the Groot Placaat 
Boek. The statutes of Batavia are printed in Van dek 
Chijs, Nederlandsch-Indisch Plakaat Boek. The pre-British 
statutes of the Cape exist but have not been printed. 

III. Decisions of the Courts. Many published volumes iii. Deci- 

sions of 
1 As to the authorship of the Aanhangsel to Kersteman's Woorden- the 
loeh see Joum. Camp. Leg., N.S., vol, xii (1911), p. 549. Courts. 

1713 C 



18 ROMAN-DUTCH LAW 

of Decisions have come down to us and are a valuable 
source of law. Particular mention may be made of the 
Sententien en gewezen Zaken van den Hoogen en Provincialen 
Baad in Holland, Zeeland en West-Friesland, published by 
Joannes Naebanxts at Rotterdam in 1662 ; of the Utrius- 
que Hollandiae, Zelandiae, Frisiaeque Curiae Decisiones of 
CoKNBLiirs Neostadiits, printed at the Hague in 1667 ; 
and of the Decisiones Frisicae sive rerum in Suprema 
Frisiorum Curia judicatarum libri V of Johannes a Sande, 
himself a Judge of the Court whose decisions he reports. 
The Latin original of this work is dated 1634. There 
is also a Dutch translation. These three volumes of Re- 
ports are often cited by Voet. Van der Keessel frequently 
refers to a volume entitled Decisien en Besolutien van den 
Hove van Holland, published at the Hague in 1751 ; but 
this and Van der Linden's Verzameling van merJcwaardige 
Gewijsden der Gerechtshoven in Holland, ^ published at 
Leyden in 1803, are rarely obtainable, 
iv. Opin- IV. Opinions of Jurists. The numerous volumes of 
Jurists Consultatien, Advysen, &c., are a very interesting and 
characteristic feature of the Roman-Dutch system of 
jurisprudence. It is enough here to refer more par- 
ticularly to the weU-known collection entitled Consulta- 
tien, Advysen en Advertissementen gegeven ende geschreven 
by verscheijden Treffelijke Bechtsgeleerden in Hollant en 
elders (commonly known as the Hollandsche Consultatien), 
originally published by Naeranus in 1645,^ containing 
the opinions of Grotius and other eminent lawyers. 
The opinions of Grotius, in particular, have been 
translated and edited by the late Mr. D. P. de Bruyn 
(1894). Other collections designed to supplement the 
above-named work were issued at various dates during 
the eighteenth century. The latest work of the kind, 
containing opinions by the eminent jurist J. D. Meijer, 
was published at Amsterdam in 1842. 

^ The Introduction to this volume contains some valuable observa- 
tions by the compiler on the authority of decided cases. 
3 Wessels, p. 243. 



GENERAL INTRODUCTION 19 

V. Custom. This is in every country a source of law. v. Custom, 
We mention it here more particularly because, as observed 
above, it is through custom that the Roman Law fo\md 
its way into Holland, and it is as custom that it continues 
to exist in the Roman-Dutch Colonies. Without attempt- 
ing a bibliography of the jus civile we may perhaps 
be allowed to recommend the student to supply himself 
with the Mommsen-KJriiger edition of the Corpus Juris. 
For a law lexicon he wiU consult the older works of 
Calvin -^ or Vicat ^ or Heumann's Hand-Lexicon,^ or the 
exhaustive Vocabularmm jurisprvdentiae in course of 
publication under the auspices of the Savigny Foundation. 

Such, then, are the sources of the Roman-Dutch Law, or Sources 
such were its soiu-ces while it still flowed in an undivided ^odera 
stream. They remain to-day the sources of law for the Law. 
several Roman-Dutch Colonies, supplemented by enact- 
ments of the local legislatures, decisions of the local 
tribunals, and local authoritative custom. The treatises 
and opinions of modern lawyers do not make law, though 
they often help the inquirer to find out what the law is. 

The principal works on the modern law of South Works on 
Africa are : The Common Law of South Africa, in 4 vols., Law. 
by Dr. Manfred Nathan ; The Institutes of Cape Law, by 
Chief Justice Sir A. F. S. Maasdobp ; English and Roman- 
Dutch Law, by Mr. George T. Moricb. 

For the Law of Ceylon the student may refer to The 
Laws of Ceylon, by Mr. Justice Perbira (2nd ed., Colombo, 
1913) ; to ^ Digest of the Civil Law of Ceylon, by Sir 
P. Aritnachalam (vol. i, ' Persons Natural and Juristic ', 
London, 1910) ; and to the earlier work entitled Institutes 
of the Laws of Ceylon, by Henry Byerley Thomson, 
a Puisne Judge of the Supreme Court of Ceylon, published 
in 1846. Sir Charles Marshall's Judgments, <kc., of 

1 Calvinus J., Lexicon juridicum juris Caesarei simul et CcMomci, 
Geneva, 1670. 

2 B. Philip Vicat, Vocabularium Juris utriusque, Lausanne, 1759. 

' Heumanns Handlexicon zu den Quellen des rdmischen Rechts (9th 
ed.), Jena, 1907. 

02 



raent. 



20 ROMAN-DUTCH LAW 

the Supreme Court of the Island of Ceylon, published at 
Paris in 1839, furnishes a conspectus of the Law of the 
Colony as it existed in the first half of the last century. 
For British Guiana no text-book exists. 

Reception The readerwho mayusethis book, or oneof the older text- 
Sf *'^? . books mentioned in the preceding pages , as an introduction 
Law in the to his study of the modem law m one or other of the Roman- 
Dutdh" Dutch Colonies must bear in mind that just as the Roman- 
Colonies; Dutch law of HoUand was a complex system drawn from 
different sources, so the law of every one of these Colonies, 
Roman-Dutch in origin, has been affected in almost every 
department by the encroaching influences of Enghsh Law. 
there- This has been the result partly of express enactment, 
(a) express P^-^tly of judicial decisions, partly of tacit acceptance. 
enact- As examples of statutory introduction of the law' of 

England, mention may be made of the Ceylon Ordinance 
No. 5 of 1852, which enacts that the law of England is to 
be observed in maritime matters and in respect of all 
contracts and questions relating to bills of exchange, 
promissory notes, and cheques ; and of the Ceylon 
Ordinance No. 22 of 1866, which makes similar provisions 
with respect to the law of partnerships, joint-stock 
companies, corporations, banks and banking, principals 
and agents, carriers by land, life and fire insurance. 

In British Guiana by Ordinance No. 6 of 1864, s. 3, 
' all questions relating to the following matters, namely 
ships, and the property therein, and the owners thereof, 
and the behaviour of the master and mariners and their 
respective rights, duties, and habihties as regards the 
carriage of passengers and goods by ships ; stoppage 
in transitu ; freight ; demurrage ; insurance ; salvage ; 
average ; colhsion between ships ; bills of lading ; and 
all rights, Habihties, claims, contracts, and matters arising 
in respect of any ship, or any such question as aforesaid, 
shall be adjudged, determined, construed, and enforced 
according to the Law of England apphcable to such or 
the hke case.' By Ordinance No. 3 of 1909 the law of 
England for the time being was made the law of the 
Colony in relation to life and fire insurance. 



GENERAL INTRODUCTION 21 

At the Cape the General Law Amendment Act No. 8 
of 1879, introduced the English law : (s. 1) in all questions 
relating to shipping ; and (s. 2) in aU questions of fire, 
life, and marine insurance, stoppage in transitu, and 
bills of lading. But (s. 3) English statutes passed subse- 
quently to the date of the Act do not apply. 

It would occupy too much space to speak of the numer- or imita- 
ous Colonial Statutes which follow more or less closely EngUsh 
the language of English Acts of Parhament and through statute 
this chaimel admit into their own system the rules and ^' 
principles of the law of England. As examples may be 
cited the Ceylon Sale of Goods Ordinance No. 11 of 1896, 
and the British Guiana Sale of Goods Ordinance No. 26 
of 1913. The numerous changes produced by the statutory 
abolition of institutions of the Roman-Dutch common 
law will be illustrated in the course of this book. 

We have not space to speak of the modification of the 
Roman-Dutch common law in the several Colonies by 
the jurisprudence whether of the Colonial Courts or of (b)judicial 
the Judicial Committee of the Privy CouncU. Fuller ^""^'""^ > 
information on these matters must be sought elsewhere. 
It is enough to have warned the student that much of the 
learning of the old books is obsolete or superseded. To the 
extent of the topics included in this book, the points of con- 
tact between the Roman-Dutch and English systems will, 
it is hoped, be sufficiently indicated in the following pages. 

Lastly, much of the EngHsh law has found its way in (o) tacit 
by a process of silent and often unnoticed acceptance, ancef* 
It would be easy to accumulate instances in every branch 
of the law. But the student may better be left to draw 
his own conclusions from the pages of the law reports 
and, in course of time, from the practice of his profession. 

In conclusion, a few words wiU be permitted with regard The pre- 
to the present condition and future prospects of the ^^on°° 
Roman-Dutch system within the British Empire. In of the 
South Africa, in Ceylon, and in British Guiana its fortunes Dutch 
have been widely different. Writing some years ago in the system : 
Journal of Comparative Legislation, I said : 



22 ROMAN-DUTCH LAW 

in South ' In South Africa its tradition is continuous, its pre- 

Afrioa, eminence unchallenged. Bench and Bar have been 
trained to it. The best legal talent of the country 
has applied it in judgments or explained it in text- 

ia Ceylon, books. Far other has been its fate in Ceylon. Here 
it has been mangled by the Legislature, and admin- 
istered by judges sometimes frankly contemptuous 
of its principles. And yet it Uves ! The local Bar is 
vigilant and active. The Bench has been adorned by 
at least one profound civihan. There are text-books. 
There are law reports almost continuous since 1821. In 

in British British Guiana these signs of activity have been absent. 

Guiana, ijij^gj-e are no text-books. There are no written records 
of judgments of earher date than 1856. There are no 
reports, the series initiated in 1890 having been discon- 
tinued after four years' life.^ Upon a general view of the 
state of the Roman-Dutch Law in this Colony it may be 
said that except in the sphere of property and intestate 
succession not very much of it remains. What of it the 
Courts had spared the Legislature has quite lately set 
itself to destroy.' ^ 

The fu- Since these words were written events have tended to 

^man- ^ confirm them. The institution of the Union of South 
Dutch Africa and with it of the Appellate Division of the Supreme 
^ ' Court, which hears appeals also from the Supreme Court 
of Southern Rhodesia, will before long lead to the produc- 
tion of a body of statutory and judge-made law, in which 
the principles of the Roman-Dutch Law will be expoimded 
in South and developed. It may be anticipated that under such 
Africa, auspices the Roman -Dutch Law will assume a completeness 
and a symmetry which it has failed to attain in previous 
ages. It will be a system in which the best elements of 
the Roman and the Enghsh Law will be welded together 
in an harmonious and indissoluble imion. As the carpus 
of South African Law grows to maturity the old folios and 
quartos, which some of us have learnt to handle with 
a feeling almost of affection, wiU be less and less consulted. 

^ Since September 1, 1900, all Supreme Court judgments have been 
published in the Gazette, previously only judgments in Appeal. 
2 Journ. Gam-p. Leg., N. 8., vol. vii (1906), p. 369. 



GENERAL INTRODUCTION 23 

Having served tl^eir turn they will yield to the fate of all 
things mortal. But the spirit of justice which inspires 
them and the rules of law which they express will live 
embodied in new forms. The reproach levied against the 
Roman-Dutch Law by a learned writer lately deceased, 
that its text-books are antiquated and its weapons rusty, 
if it is true to-day, will be true no longer. 

In British Guiana the doom of the Roman-Dutch Law in British 
has been pronounced. The ' Common Law Commission ' "^''"^' 
appointed by the Governor of the Colony has recently 
reported in favour of its replacement by the Common Law 
of England, to the exclusion, however, of the English 
Law of Real Property. Whether tliis scheme will be carried 
out in its entirety remains to be seen. 

Meanwhile the Commissioners append to their Report 
the draft of ' An Ordinance to codify certain portions of 
the Roman-Dutch Law of the Colony and to substitute the 
English Common Law and principles of Equity for the 
Roman-Dutch common law ', and propose that it should 
come into operation by January 1, 1915.^ The justifica- 
tion for a change of so uncompromising a character is 
foimd in the circumstances of the Colony. 

' While much has gone from the Roman-Dutch domain 
much remains. Roman-Dutch Law may be seldom quoted 
in the Courts and even then with little hope of the quota- 
tion seriously affecting the issue. EngUsh authorities 
and precedents may tend more and more to have weight 
with judges and lawyers to its exclusion. But it remains 
as an element of uncertainty. We have all the disadvan- 
tage of a mixed system without the elasticity of the 
Roman-Dutch jurisprudence.' 

' It increases the work of both judge and counsel. 
It wastes time and is a source of expense. In this country 
it is not a living system. We have no resident Dutch 
population and few even of the Dutch names survive. 
The colonists have no sentimental affection for any legal 
legacy of the Batavian Republic of 1803 or the Kingdom 
of the Netherlands of 1 814. Our population is a small one, 
very mixed in race. East Indians and Portuguese make 
1 This design has not been realized. See Preface. 



24 ROMAN-DUTCH LAW 

up some fifty per cent. ; and natives of the West Ijidian 
Islands form no smaU proportion of the balance. Mixed 
as it is, it is overwhelmingly British in its attachments, 
traditions, and sympathies.' 

in Ceylon. In Ceylon, if the Roman-Dutch Law is not so firmly 
established as it is in South Africa, yet it is not, as in 
British Guiana, in danger of immediate extinction. It 
seems more likely that in this Colony it will die slowly 
of asphyxia, smothered beneath legislation which may, 
however, continue in a greater or less degree to reflect 
its principles. 

APPENDIX 

How FAR THE STATUTE LaW OF HOLLAND OBTAINS 

IN THE Colonies 

In In re Insolvent Estate of London, Discount Bank v. Dawes 
(1829) 1 Menz. at p. 388, the Court observed : ' When this 
Colony was settled by the Dutch the general principles and 
rules of the law of Holland were introduced here, but by such 
introduction of the law of Holland it did not follow that 
special and local regulations should also be introduced ; accord- 
ingly the provisions of the Placaat of 5th February, 1665, as to 
the payment of the 40th penny (3 G. P. B. 1005) have never 
been part of the law of this Colony, because this tax has never 
been imposed on the inhabitants of this Colony by any law 
promulgated by the legislative authorities withiu this Colony. 
In like manner untU a law had been passed here creating 
a public register the provisions of the Placaat of 1st February 
1580 (? 1st April— 1 G. P. B. 330), were not in force or observ- 
ance here.' 

In Herbert v. Anderson (1839) 2 Menz. 166, the following 
Placaats were said to be merely fiscal and revenue laws of 
Holland, which had never become or been made law in Cape 
Colony, viz. Placaats, &c., of June 11, 1452 (3 G. P. B. 18), 
January 22, 1615 (1 G. P. B. 363), April 1, 1580 (Art. 31, 
1 G. P. B. 337), March 29, 1677 (3 G. P. B. 672), April 3, 
1677(3G.P.B. 1037). This decision was quoted with approval 
by Kotze C.J. in Eckhardt v. Nolte (1885) 2 S. A. R. 48, who 



APPENDIX 25 

added (at p. 52) : ' From this it follows that the Placaats 
of [September 26] 1658 (2 G.P.B. 2515) and [February 24] 
1696 (4 G. P, B. 465) and others in pari materia, merely re- 
newing the earlier Placaats are likewise of no application at 
the present day.' On the other hand, in De Vries v. Alexander 
(1880) Foord at p. 47, de Villiers C. J., referring to Herbert y. 
Anderson said : ' The Court could only have intended to 
confine their decision to those portions of the Edicts (of 1515 
and 1580) which are of a fiscal or of a purely local nature. 
So far as they had been incorporated in the general law of 
Holland, and were not inapplicable here, they were equally 
incorporated in the law of this Colony.' Applying this prin- 
ciple, the learned Judge held that the 9th Art. of the Placaat of 
September 26, 1658, formed part of the law of Cape Colony. 

In British Guiana the question arose in 1905 as to the 
validity of a gift by wiU to a Roman Catholic bishop : (a) for 
offering masses for the soul of testatrix ; (6) for the benefit 
of Roman Catholic churches. The full Court (Bo veil C. J., 
Lucie Smith, and HewickJJ.) held that the Acts of: (1) Octo- 
ber 28, 1446 ; (2) July 6, 1515 ; (3) March 20, 1524 ; (4) October 
16, 1531 ; (5) May 4, 1655 ; (6) October 14, 1655 ; have never 
been part of the law of these Colonies (De Freitas v. Exor. of 
Jardim (1905) Brit. Qui. Off. Oaz., vol. xxii, p. 1193). [For 
Cape law herein see Act No. 11, 1868.] On the other hand, 
the Placaat of September 26, 1658, has been held to be in 
force in British Guiana (Liquidator of the Brit. Qui. Ice Go. v. 
Birch (1909) Brit. Ghii. Off. Gaz., vol. xx, p. 3). ' There was 
nothing in the original circumstances of this Colony which 
would show that this part of the Roman-Dutch Law was 
unnecessary, unsuitable, or inapplicable, or that cases could 
not reasonably be expected to arise in which the Placaat or 
any riiles founded thereon would be appropriate. ... It is 
obvious that the mere non-existence of any concrete case to 
which the law could be applied at the date of the Colony's 
foundation would not be a sufficient reason for holding that 
the Placaat and rules based thereon were not introduced here, 
as similar reasoning would prove the non-introduction of 
some of the most elementary laws for the preservation of life 
and property ' (Bovell C. J., Hewick, and Earnshaw JJ.). 

For Ceylon Law see Karonchihamy v. Angohamy (1904) 



26 ROMAN-DUTCH LAW 

8 N. L. R. 1, in which Middleton J. and Sampayo A. J. (Mon- 
creifE A.C.J, dissenting) held that the Placaat of July 18, 1674, 
prohibiting marriage between an adulterer and his adulteress, 
was not in force in Ceylon, and that it is for those who assert 
and rely upon the operation of a law enacted since the date 
of the Dutch occupation of the island in 1656 to show beyond 
all question that it operates and applies. See also authorities 
cited in argument in Rabot v. de Silva [1909] A. C. 376, and 
Pereira, Laws of Ceylon, p. 12. 



BOOK I 

THE LAW OF PERSONS 

The law relating to persons occupies the first book of The Law 
the Institutes of Gaius and Justinian. The scope and whaut"*' 
meaning of the phrase have been much discussed, with includes, 
little result save to show that the distribution of topics 
made in these treatises between the law of persons and 
the law of things is not logically defensible, or, at least, 
is not readily imderstood by modem writers. In this 
volume we shall include under the law of persons the 
allied topics of : (1) the law of status ; (2) the law of the 
consequences of status ; and (3) family law. No attempt 
will be made to keep these topics rigidly distinct. The 
method adopted wiU be to trace the legal life-history of 
human beings from conception to the grave, and to see 
how their rights and duties are affected by certain con- 
ditions or accidents of human life, such as birth, minority, 
marriage, mental disease. To this wiU be added some 
remarks on artificial or juristic persons. For convenience 
the subject will be treated in chapters dealing with : 

1. Birth, Sex, Legitimacy. 

2. Parentage. 

3. Minority. 

4. Guardian and Ward. 

5. Marriage. 

6. Unsoundness of mind. 

7. Corporations and other juristic persons. 



28 THE LAW OF PERSONS 

CHAPTER I 

BIRTH, SEX, LEGITIMACY 

Section 1. — Birth 

Birth. Legal capacity begins with the completion of birth,^ 

subject however to the qualification that a child in the 

womb is deemed already bom whenever such a fiction 

is for its advantage. Thus an unborn child may inherit 

ab intestato} 

Section 2. — Sex 

Sex. Sex, as such, is not a factor of importance in the sphere 

of private law. There is a difference, however, in the 
age of puberty, which for males is fixed at fourteen years, 
for females at twelve.* Further, there is a special rule 
of law by which a woman cannot bind herself as surety 
unless she expressly renounces the benefits which the 
law allows her.* 

Section 3. — Legitimacy 

Legiti. By the law of all civilized countries a distraction is 

"laoy. made between legitimate and illegitimate issue. Legiti- 
mate children are those bom from parents imited in 
wedlock.* Li the case of issue born from the beginning 
of the seventh ^ month after marriage to the beginning 
of the eleventh month' after its termination by death 

^ Oerman Civil Code, sec. I ; Ontwerp van het Burgerlijk Wetboek, 
Art. 76. 

2 Dig., 1. 6. 7 and 26 ; Gr. 1. 3. 4 ; Voet, 1. 5. 5 ; V. d. K. Th. 45. 

3 last. 1, 22. pr. ; Van Leeuwen, 1. 6. 1 ; Voet, 4. 4. 1. 

* Senatus-Consvdtum Velleianum ; Authentica si qua mulier. 3Maas- 
dorp, p. 347 ; infra, p. 264. Abrogated in Brit. Gui. by Ord. No. 12 
of 1904, sec. 25. 

= Gr. 1. 12. 2 ; V. d. K. Th. 169. 

« Gr. 1. 12. 3 ; Voet, 1. 6. 4. Van Leeuwen (1. 7. 2) says : ' We 
consider as legitimate those persons who are bom during the seventh 
month, or even on the hundred and eighty-second day after the con- 
summation of the marriage.' 

' V. d. K. Th. 170 : Post solutum matrimonium intra decimum 
mensem id est 300'^™ diem partum editum esse oportet ut regulariter 
pro legitimo possit haberi. The period has even been extended to the 



BIRTH, SEX, LEGITIMACY 29 

or divorce the presumption of legitimacy is only rebuttable 
by proof of impotence or non-access.^ Indeed legitimacy 
is presumed whenever a child is bom during the subsis- 
tence of marriage, even though it be bom on the very day 
on which the marriage is celebrated.^ This is in accord- Pater is 
ance with the maxim ' pater is est quern nuptiae demon- nuptiae 

strant '.* But if the husband can prove sexual relations "iemon- 

1 strant. 

before marriage imknown to him followed by pregnancy 

and not condoned by cohabitation subsequent to his 
discovery of them, he is entitled to have the marriage 
declared null and void.* The uncorroborated evidence 
of a married woman is not permitted to bastardize her 
own child.^ To prevent difficult questions as to paternity, 
the Dutch Law, following the Civil Law,^ prohibited re- 
marriage within a certain time after a first husband's 
death.'' This was called the widow's ' annus luctus ' ; Annus 
but in Holland the period of mourning (treur-tijd) varied 
in di£Eerent places, with a preference for a term of six 
months.* In the Roman Law re-marriage within the 
year of mourning entailed penal consequences.® This 
was not the case in the Dutch Law,^" and in the Colonies 

tweKth month inclusive in a case where the lady's character was 
thought to be beyond reproach. Voet, loc. cit. ; Sande, Decis. Fris. 
4. 8. 10. In Ceylon the limit of time is two hundred and eighty days 
after the dissolution of marriage, the mother remaining unmarried. 
Evidence Ordinance, No. 14 of 1895, sec. 112. 

^ The presumption in favour of legitimacy may be rebutted by 
' clear and satisfactory evidence '. Fitzgerald v. Oreen [1911] E. D. L. 
at p. 462. 

2 Gr. 1. 12. 3 ; Van Leeuwen, 1. 7. 2 ; Cens. For. 1. 1. 3. 5 ; Voet, 
1. 6. 5 and 7 ; V. d. K. Th. 169. 

2 (Paulus) Dig. 2. 4. 5 ; Voet, 1. 6. 6 ; RicMer v. Wagenaar (1829), 
1 Menz. 262. 

* Voet, 24. 2. 15 ; Horak v. Horak (1860) 3 Searle 389. It is not 
so in English law. Moss v. Moss [1897] P. 263. 

6 Schorer ad Gr. 1. 12. 3 ; Voet, 1. 6. 7. 

8 Cod. 5. 9. 2 (Gratian, Valentmian, and Theodosius, a.d. 381). 

' Gr. 1. 5. 3, and Schorer's note. Van Leeuwen (1. 14. 14) says 
that a widow must wait six months after the death of her former hus- 
band, unless in the interval she has been delivered of a child. 

' Fockema Andreae, Bijdragen, vol. i, p. 167 ; V. d. K. Th. 67. 

» Cod. 6. 9. 2. 

M Cens. For. 1. 1. 13. 27 ; Groenewegen, de leg. abr. Cod. ad loc; 
Bjmkershoek, Quaestiones Juris Privati, lib. II, cap. iv ; V. d. K. Th. 68. 



30 



THE LAW OP PERSONS 



Eene 

moeder 

maakt 

geen 

bastaard. 



Legiti- 
mation. 



the institution itself has passed out of use.^ If a widow 
so far forgets herself as to remarry within the period of 
mourning and issue is born which may be attributed to 
either father, it is presumed to be the child of the second 
husband.^ 

A bastard has no lawful father and therefore no rights 
of succession ex parte paterna. But with the mother it is 
different ; for ' eene moeder maakt geen bastaard ', and 
therefore her illegitimate issue succeeds to her and to 
her blood relations.^ Such was the opinion of Grotius, 
though, as regards these last, Van der Linden inclines to 
a contrary view.* 

Illegitimate issue may be legitimated : (1) by subsequent 
marriage ; (2) by an act of grace on the part of the Sove- 
reign.* The first of these modes alone obtains at the present 
day.* Children bom in adultery or incest (which extends 
to all the prohibited degrees) are incapable of legitimation 
by subsequent marriage.' 

^ By the Transvaal Marriage Ordinance (No. 3 of 1871), s. 9, no 
widower might marry within three months after the decease of his wife, 
and no widow within three hundred days after the decease of her 
husband ; but this is no longer law, having been repealed by Procl. 
No. 34 of 1901. For the Orange Free State see Law No. 26 of 1899, 
sec. 13. The annus luctiis is unknown in Cape Colony (1 Maasd., p. 19 ; 
Nathan, Common Law of South Africa, vol. i, p. 100 (2nd ed., p. 108)), 
Ceylon and British Guiana, though in the last-named colony there is 
a clause abolishing it in the Draft Ordinance of the Common Law 
Commission of 1914. 

^ Voet, 1. 6. 9; who gives amongst other reasons because 'ipse 
incertitudinis auctor et causa est '. 

" Gr. 2. 27. 28 ; Van Leeuwen 1. 7. 4 ; Anton. Matthaeus, Faroe- 
miae, No. 1 ; V. d. L. 1. 4. 2. No distinction is made between 
adulterine, incestuous, and other bastards. Anton. Matth., ubi sup., 
sees. 7 and 8 ; Fitzgerald v. Green,, ubi sup. pp. 474 B. 

* V. d. L. 1. 10. 3. The question was much debated. See against 
Grotius, Bynkershoek, Quaest. Jur. Friv. lib. Ill, cap. ii. ; for Grotius, 
Van der Vorm [Versterfrecht, ed. Blondeel, pp. 212 ff.), and V. d. K. 
Th. 342-5. See also Mogamat Jassiem v. The Master (1891) 8 S. C. 
269. As to succession to bastards see Van der Vorm, ubi sup. p. 237. 

= Gr. 1. 12. 9 ; Van Leeuwen, 1. 7. 5 ; Voet, 25. 7. 6 and 13 ; 
V. d. K. Th. 171-2 ; V. d. L. 1. 4. 2. 

° (Cape Province) 1 Maasd., p. 9. 

' Van Leeuwen, 1. 7. 7 ; Voet, 25. 7. 8 ; V. d. L. 1. 4. 2. Grotius 
(1. 12. 9) merely says that legitimation is not readily accorded to 
them. This refers only to legitimation by act of grace, for as pointed 
out by Kotz6 J., in Fitzgerald v. Green, ubi sup. at p. 472, legitimation 



PARENTAGE 31 

CHAPTER II 

PARENTAGE 

Birth implies parentage and the reciprocal duties of Parentage. 
parent and children. These may be considered under two 
heads : (A) the reciprocal duty of support ; (B) the 
parental power and its consequences. 

A. The reciprocal duty of support. 
A father must support his children/ i.e. he must supply The reci- 
them with necessary food, clothing, shelter, medicine, dutjTof 
and elementary instruction.^ The duty extends to eman- support 
cipated children ^ (i.e. to such as have reached or are parents 
deemed to have reached fuU age), if they have not suffi- ^^ "*'''" 
cient means for their ovm support ; * and it includes 
illegitimate ^ as well as legitimate children or further 
descendants.® The obligation is personal and ends with 
the father's death.' The father does not escape liability 

by subsequent marriage presupposes that marriage could have taken 
place between the parents at the time of the birth of the child. But 
Voet allows legitimation if marriage within prohibited degrees is after- 
wards contracted with the necessary dispensation in cases where dis- 
pensation is permitted by law. In Ceylon illegitimate children are 
legitimated by subsequent marriage unless procreated in adultery. 
Ord. No. 2 of 1896, s. 22. 

1 Gr. 1. 9. 9 ; Van Leeuwen, 1. 13. 7 ; Voet, 25. 3. 5 ; and 
grandchildren too if their parents are dead or indigent. Ibid. sec. 7. 
According to Van Leeuwen (uhi sup.), a man is obliged to support and 
educate his brother, sister, or brother-in-law, whether of the whole 
or of the half blood, in case they have become reduced to poverty, and 
also his natural brother. For Brit. Gui. see Ords. Nos. 13 and 14 of 
1903, supplementing the common law [G.]. 

2 Van Leeuwen, 1. 13. 8 {ad fin.); Voet, 25. 3. 4. 

3 Dig. 25. 3. 5. 1 ; Voet, 25. 3. 5. 

« Dig. 25. 3. 5. 7 ; Voet, 25. 3. 14-15. 

° Voet, 25. 3. 5 ; including incestuous and adulterine issue. Secus, 
jure civili. Nov. 89, cap. xv. 

« Voet, 25. 3. 7. 

' Voet, 25. 3. 18 ; so says Voet here and elsewhere (e. g. 23. 2. 82) ; 
contra, Groen., de leg. ahr. ad Dig. 34. 1. 15. 'Upon the question 
whether the obligation of a father to support his children passes to his 
heirs, the authorities are by no means agreed.' Sir Henry de Villiers 
C.J., in Carelse v. Estate De Vries (1906) 23 S. C. at p. 536. In this 
case it was held that deceased's estate being more than sufficient to pay 



32 



THE LAW OF PERSONS 



by the fact that he has made other provision for a son, 
which the son has lost or squandered.^ 

The mother likewise is liable, together with the father 
during his lifetime, and solely after his death. The 
mother of illegitimate children is liable for their support.^ 
In case of divorce, both parents may be required to 
maintain the children according to their means.* The 
obligation of support ceases if the children are able by 
their industry or from their own means to support them- 
selves.* The duty is reciprocal. Children must maintain 
their parents,^ and if they are minors or lunatic the Court 
may charge the cost of maintenance upon their estate.^ 
In every case the proper process to enforce this duty is 
not an action but petition to the Court.' 



The 

parental 
power 
and its 
conse- 
quences. 



B. The 'parental power and its consequences. 

Parental power, or, as it is also called, natural guardian- 
ship, has little in common with the patria potestas of 
the Civil Law.* Van der Linden writes : 

' The power of parents over their children differs very 
much among us from the extensive paternal power among 
the Romans. It belongs not only to the father, but also 
to the mother, and after the death of the father to the 
mother alone. It consists in a general supervision of the 
maintenance and education of their children and in the 
administration of their property. It gives the parents 
the right of demanding from their children due reverence 

for the support and maintenance, according to their condition in life, 
of his legitimate children, it was competent for the Court to award to 
the mother of his illegitimate children as their natural guardian, such 
sum as would enable her to supply them with the means of subsistence, 
until they were old enough to earn it for themselves. Ibid, at p. 537. 

1 Voet, 25. 3. 5. 

^ So is the father if he is Imown. Gr. 3. 35. 8 ; Van Leeuwen, 
uhi sup. 

» Van Leeuwen, 1. 15. 6 ; Voet, 25. 3. 6 ; and 48. 5. 6. 

* Voet, 25. 3. 14-15. The child's whole capital must be ex- 
hausted before he becomes chargeable on his parent. Holl. Cons., vol. ii, 
no. 280. 

^ Voet, 25. 3. 8 ; Holl. Cons., vol. ii, no. 279. 

8 In re Knoop (1893) 10 S. C, 198. 

' Voet, 25. 3. 13. » Gr. 1. 6. 3 ; Van Leeuwen, 1. 13. 1. 



PARENTAGE 



33 



, Cus- 



and obedience to their orders, and also in case of improper 
behavioior to inflict such moderate chastisement as may 
tend to improvement. Parents may not be sued by their 
children without leave of the Court, termed venia agendi.^ 
No marriage can be contracted by children without the 
consent of their parents. The parents are entitled on their 
decease to provide for the guardianship of their children.' ^ 

Whatever is here said of children must be understood 
to refer to minor children, for in the Roman-Dutch law 
parental power ceases when the child attains full age.* 

The incidents of the parental power described by Van 
der Ldnden may be developed as follows : 

\. Custody and Control. The custody, control, and educa- i 
tion of children belong to the father, and after his death oontro? 
to the person named in his wUl.* FaUing any such disposi- 
tion the Court wiU appoint a fit person to act in this behalf, 
and in the absence of good cause to the contrary the mother 
will be preferred to remoter relatives or strangers. Re- 
marriage is not in itself a ground of exclusion.^ 

2. Administration. During the lifetime of both parents, 
and in the modem law xmtil the father's death,® the manage- 
ment of a minor child's property belongs to the father, 
except so far as the person from whom such property is 

^ In the Cape Province venia agendi is abrogated by disuse. Mare 
V. Jfare (1910)0. P. D. 437. 
^ v. d. L. 1. 4. 1 (Juta's translation). 

* V. d. L. 1. 4. 3. Full age is now fixed by law at the twenty-first 
birthday. Infra, p. 37. 

* Voet, 27. 2. 1 ; Van Rooyen v. Werner (1892) 9 S. C. 425, where 
de VUliers C. J. reviews the whole subject of paternal and maternal 
rights. Semble, a surviving mother is now absolutely entitled to the 
custody unless the Court sees fit to direct otherwise. 

^ Voet, iibi sup. 

° In the old law the father's natural guardianship did not survive 
the death of the mother. It was necessary for him to apply to the 
Court to be appointed guardian along with the guardian, if any, named 
in the will of his deceased spouse. Except in this capacity the 
surviving father had no competence either to represent his minor 
son in Court, or to administer his estate. Gr. 1. 7. 8-9; Voet, 
26. 4. 4. Van der Keessel is to the same effect. Dictat. ad Gr. 1. 7. 8 
(in fine). This can no longer be regarded as representing the law in 
South Africa. See Van Rooyen v. Werner, ubi sup. at p. 428, where 
de ViUiers C.J. said : ' As to the father, he is the natural guardian of his 
legitimate children until they attain majority.' 

1713 D 



2. Admin- 
istration ; 



34 THE LAW OF PERSONS 

derived may have excluded the father from the administra- 
tion and appointed a curator nomiaate in his stead.-*^ In the 
event, however, of property coming to the child by inherit- 
ance the parents must give notice to the proper authority, 
who will inquire whether the administration of such 
inheritance requires a special guardian or not.^ The father 
may apply the income of property belonging to the child for 
his maintenance, education, and other like purposes.' He 
may invest his child's money,* and (within limits) contract 
on his behalf.^ But an executory contract entered upon 
by the father in the name of his minor son, if prejudicial 
to him, will not be enforceable against the son unless 
expressly ratified by him after majority.^ 

A minor child, being imemancipated, is unable to 
contract without the consent of his father.' Any con- 
tract entered upon by him without such consent is ipso 
jure void, and will not bind either the child or the father * 
except in so far as either of them has been enriched 
thereby, and if any payment has been made by the minor 
imder such contract, it is recoverable by the condictio 
indebiti. If, however, the minor's contract is authorized 
or ratified by the father, the father will be liable. So 
far and so far only may a minor son bind his father by 
his contracts.^ 

A father may represent his son in Court ^° and sue and 
defend in his name, but if he does so without leave from 

^ Gr. 1. 6. 1, and Sohorer, ad loo. 

" Gr. uU sup. ; V. d. K. Th. 103. The rule in the text has never 
been observed in Brit. Gui. [G.]. 

^ Van Leeuwen, 1. 13. 2. 

* Van der Byl v. Solomon (1877) Buoh. at p. 27. 

^ Gr. 3. 1. 28 ; e.g., he may bind him by a contract of service. 
V. d. K. Dictoi. ad loc. " Van der Byl y. Solomon, ubi sup. 

' V. d. L. 1. 4. 1. 

^ Gr. 3. 1. 34. Noj is a father liable for his son's delicts unless 
expressly made so by statute, as is sometimes the case. V. d. K. 
Dictat. ad loc 

° Voet, 15. 1. 11. Conversely the advantage of the minor child's 
contract accrues to the father. Gr. 3. 1. 38, and V. d. K. Dictat. ad loc. 

" Gr. 1. 6. 1. ' The right of a father to bring actions on behalf of 
his minor children has been repeatedly recognized by this Court.' 
Van Rooyen v. Werner, ubi sup. at p. 430, per de ViUiers C. J. 



PARENTAGE 35 

the Court he will be personally answerable for costs, if 
the suit proves unsuccessful.^ 

3. Consent to marriage of minor children. The con- 3. Con- 
sent of parents is necessary to the marriage of minor ^®''**° 
children,^ and without it the marriage is null and void.^ of minor 
Consent may be either express or implied. It is impUed ''^'^^" ' 
if the father knows that the marriage of the minor is 
about to take place and does not forbid it.* Strictly, 

the mother's consent is also necessary, but in case of dis- 
agreement the father's wUl prevails.^ Li the absence of 
fraud, publication of banns is, in the Cape Province, pre- 
sumptive evidence of consent, and a marriage celebrated 
after publication of banns without objection by the 
father is neither void nor voidable.® But a marriage 
celebrated after special licence without the father's 
consent may be set aside at his instance. The consent 
of grandparents or remoter ascendants is in no case 
necessary,' nor is consent necessary to a second marriage 
of widows or widowers who are under the ordinary age 
of majority.* 

4. Bight to provide testamentary guardians. This has *• Right 
been mentioned above,* and wiQ be further considered po^t 
under the head of Guardianship. guardians 

bv will ' 

5. Rights in respect of minor children's property. The g ^. ■ ' 
Dutch Law, following the Roman Law, distinguishes in re- 
between peculium profecticium and peculium adven- ^^or° 
ticium. Jure civili the first of these belonged wholly to children's 
the father ; ■^'' of the second, which belonged to the son, the 



property. 



1 Van der Walt v. Hudson (1886) 4 S. 0. 327. 

^ Gr. 1. 5. 15, and Schorer, ad loo. 

=• Voet, 23. 2. 11 ; V. d. K. Th. 75 ; V. d. L. 1. 3. 6. Infra, p. 72. 

* Voet, 23. 2. 8. 

^ Voet, 23. 2. 13 ; Schorer, ubi sup. At the Cape ' He alone can 
consent to their marriage '. Van Rooyen v. Werner, ubi sup. at p. 429. 

° Johnson v. Mclntyre (1893) 10 S .C. 318. Semble, the marriage 
cannot in any case be impeached by the minor spouses themselves. 
Willenburg v. Willenburg (1909) 3 Buch. A. C. 409, per de Villiers 0. J. 

' Voet, 23. 2. 15 ; V. d. L. 1. 3. 6. 

8 Voet, 1. 7. 14 ; V. d. L. 1. 4. 3. 

» 8upra, p. 33. 

w From which it follows that a father cannot make a valid gift to 
a son in power. Gr. 3. 2. 8 ; Voet, 39. 5. 6 ; but Schorer, following 

d2 



36 THE LAW OP PERSONS 

father had the usufruct. Peculium profecticium, ac- 
cording to Voet, comprises (1) gifts made by sponsors at 
baptism, which are deemed to be made to the father, not 
to the child ; ^ (2) anything acquired by children residing 
at home and supported by their parents, whether acquired 
suis operis or ex re patris. Schorer is to the same effect. 
' What children acquire by their own labour and industry, 
while supported by their parents, is acquired for their 
parents,' being set off against the cost of maintenance.^ 
Adventitious property, however, i.e. property coming to 
the child from sources other than the above, belongs to 
the child in full ownership, and the father has no usufruct 
therein, unless this has been expressly conferred upon 
him by the person from whom the property is derived, or 
unless it is necessary for him to use the property and apply 
its proceeds about the maintenance and upbringing of 
the minor child.^ 

Thus far of the incidents of the parental power. It 
remains to see how it is acquired and lost. 
How the The parental power is acquired * by : (1) birth in lawful 
power is wedlock ; and (2) legitimation by subsequent marriage ; ® 
acquired: ijij-fc not, as amongst the Romans, by adoption.® It is de- 
°^ °^ ■ termined by : (1) the death of parent or child ; ' (2) eman- 
cipation, which is either (a) judicial, i.e. by order 

Groenewegen in noiis ad Grot. loc. oit. and de l^. abr. ad Inst. 3. 20 
(19). 6, says that this no longer obtains. See also V. d. K. Th. 485. 

^ Voet, 15. 1. 4; but see Van Leeuwen, 3. 16. 7 ; and V. d. K. 
Th. 104. 

^ Gr. 1. 6. 1; and Schorer ad loc. ; Van Leeuwen, 2. 7. 7; Voet, 
15. 1. 4 and 25. 3. 14. For Brit. Gui. see Bego v. Gappell (1901) Brit. 
Qui. Off. Oaz., vol. xiii, p. 704, where it was held that the property 
acquired by a minor by his labour belongs to himself, and not to his 
parents, and consequently is not executable for their debts [G.]. 

^ Van Leeuwen, 1. 13. 2, and Decker ad loc. ; Voet, 14. 1. 6 ; 
Schorer, ubi sup. ; V. d. K. Th. 105. 

^ Voet, 1. 6. 4. 

5 Gr. 1. 12. 9 ; and Schorer ad loc. ; Voet, 25. 7. 6 ; V. d. L. 
1. 4. 3. Legitimation by act of the Sovereign is disused in Cape 
Colony (1 Maasd. p. 9), and probably elsewhere. 

« Gr. 1. 6. 1 ; Van Leeuwen, 1. 13. 3 ; Voet, 1. 7. 7 ; V. d. L. 
1. 4. 2 ; Bohb v. Mealey's Exor. (1899) 16 S. C. 133. But see V. d. K. 
Th. 102. 

' Voet, 1. 7. 9. 



PARENTAGE 37 

of Court made at the father's instance/ or (6) tacit, as 
when a son is permitted to live and carry on business by 
himself ; ^ (3) marriage ; * (4) majority ; * to which 
Voet adds (5) public office or priesthood ; ^ and Grotius 
(6) the placing of the father under curatorship.® 



CHAPTER III 
MINORITY 

A MiNOE by Roman -Dutch Law is a person of either sex Minority. 
who has not completed the twenty-fifth year.'' For this 
the twenty-first year has been substituted by statute in 
all the Roman-Dutch Colonies .* As to the precise moment 
at which minority ends Voet makes the following distinc- 
tion. The last day of minority is regarded as completed 
at the moment of its inception, where it is to the minor's 
advantage that it should be so considered ; ' but where the 
advantage lies the other way, so as, e.g., to prolong the 
benefit of restitutio in integrum, then, majority is not 
deemed to be attained imtil the very minute arrives at 
which birth took place. ^^ 

^ Gr. 1. 6. 4 ; Voet, 1. 7. II. But see Decker ad Van Leeuwen, 
I. 13. 5 ; V. d. L. 1. 4. 3 (note 4) ; V. d. K. Th. 107 and 110. 

^ The two conditions need not always co-exist. A separate estab- 
lishment is enough, a separate business only if the parents have not 
expressed a contrary intention. V. d. K. Dictat. ad Gr. 1. 6. 4. 
According to Voet (1. 7. 12), the separate estabUshment must have 
continued for a year and a day. 

5 Gr. 1. 6. 4 ; Van Leeuwen, 1. 13. 4 ; Voet, 1. 7. 13. 

* Van Leeuwen, 1. 13. 6 ; Voet, 1. 7. 15. 

= Voet, 1. 7. 10. But see Van Leeuwen, 1. 13. 6. 

^ Gr., 1. 6. 5. But the child, of course, remains a minor. Van 
Leeuwen, ubi sup. A sentence of banishment (and in the modern law, 
no doubt, a long term of imprisonment) has the same effect. V. d. K. 
Th. 109. 

' Gr. 1. 7. 3 ; Van Leeuwen, 1. 12. 3 ; Voet, 4. 4. 1. 

8 Cape, Ord. 62, 1829, sec. 1 ; Natal, Ord. No. 4 of 1846, sec. 1 ; 
Transvaal, VoLksraad Resolution of December, 1853, Art. 123 ; 0. F. S. 
Law Book of 1901, chaip. 89, sec. 14 ; Ceylon, Ord. No. 7 of 1865, 
sec. 1 ; British Guiana, Ord. No. 1 of 1832. 

» Voet, 4. 4. 1. 

" Gr. 3. 48. 9 ; Voet, ubi sup. and 44. 3. 1 ; Oens. For. 1. 4. 43. 11, 
of. Dig. 4. 4. 3. 3. In English law full age is reached at the beginning 



38 THE LAW OF PERSONS 

Majority Majority may be accelerated by : (1) venia aetatis ; (2) 
Sot- marriage. Venia aetatis, Grotius says, is obtained when 
atedby: the minor is for special reasons declared of age, before 
aetatisT attaining the prescribed years of majority, either by the 
Sovereign or by the Court.^ Voet,^ however, and Van der 
liriden ^ give the prerogative of conceding it to the Sove- 
reign alone. After some difference of opinion the law 
has been settled in this sense by the Courts of South 
Africa.* The effect of venia aetatis (which is not given 
to males under twenty or to females under eighteen years 
of age) ^ is to put an end to all the incapacities and benefits 
of minority except as regards the alienation or hypotheca- 
tion of immovables, which, unless expressly granted along 
with venia aetatis, can only be effected after leave 
obtained from the Court. In this respect alone, persons 
who have obtained venia aetatis remain on the same 
footing as other minors.® 
(b) Mar- The effect of marriage is different. In the case of a 
"age. male this puts an end to minority absolutely ;' accordingly 
the latter does not revive in the event of the death of 
the wife while the husband is within the ordinary limits 
of minority.^ But in this case, as also in the case of natural 

of the day before the twenty-first birthday (1 Blackst. Comm. 463, and 
Christian's note). Is the rule the same in R.-D. L. ? See Dig. 50. 16. 134 
and 28. 1. 5, with Gothofredus' note. As to leap year see Voet, uhi sup. 

1 Gr. 1. 10. 3. The language of Grotius limits this privilege to an 
orphan (wees). The institution of venia aetatis is taken from the 
Civil Law, Cod. 2, tit. 44 (45). 2 Voet, 4. 4. 4. 

» V. d. L. 1. 4. 3. See also V. d. K. Th. 161. 

* See cases in Nathan, Common Law of South Africa, vol. i, p. 116 
(2nd ed. p. 126), and Bisset and Smith, Dig. S. A. Case Law, vol. ii, col. 
1837. Maasdorp (vol. i, p. 237) says that venia aetatis is obsolete in 
the Cape Province. For a form of venia aetatis stiU in use in Ceylon 
see Appendix A to this Book (infra, p. 107). 

» Cod. 2. 44 (45). 2 ; V. d. L., ubi sup. ; O. F. S. Law Book of 1901, 
chap, scii, sec. 7. But see Van Leeuwen, 1. 16. 11. 

° Voet, 4. 4. 5 ; minoribus caeteris hac in parte manentes exaequati. 

' Voet, 4. 4. 6. 

8 Schorer ad Gr. 1. 6. 4 ; V. d. K. Th. 879 ; V. d. L. 1. 4. 3. The 
position of a female widow not yet twenty-one years old is somewhat 
anomalous. She has been a minor during marriage jwremanfoM. The 
death of the husband leaves her still under age. But, on the other hand, 
she does not revert to. the paternal power or require a guardian. V. d. K. 
says (Th. 879) that she cannot be relieved from her contracts on the 



MINORITY 39 

majority, the Orphan Chamber might for good cause 
prolong the period of guardianship beyond its usual legal 
term.^ 

The next matter for consideration ia the legal status The legal 
and capacity of a minor. The subject ia inadequately f^d"!- 
treated in the text-booka, but the following rules may be paoityof a 
extracted from them. minor. 

1. If the child is so young that he does not know what 
he is about, he is absolutely incapable of contracting at all 
with or without assistance, for, as Van Leeuwen saya : 
' AU obligationa must arise out of a free and full exercise 
of the wUl. It cannot therefore take place where there 
is a hindrance to the exercise of the will as in the case of 
limatics and madmen and young children, who are 
bound neither by a promise nor acceptance.' ^ 

2. If the cMld is old enough to understand the nature 
of the transaction, he has intellectus but is still wanting 
in judicium, and therefore cannot, with some exceptions, 
contract a valid obligation without his parents' ^ or 
guardians' * consent. ' Municipal law,' says Grotius,* 
' considers all obligations incurred by minors ® as invalid, 
unless incurred through delict or in so far as they have 
been benefited.' 

Such obligations are said to be ipso jure void, and 
therefore minors are ipso jure secure from any claims in 
respect of them without the need of invoking the extraor- 
dinary remedy of restitutio in integrum.' The phrase 

ground of minority. Voet, however (4. 9. 9), whom he calls in aid, 
expresses the opposite view. ^ Voet, uhi sup. ; V. d. K. Th. 160. 

2 Van Leeuwen, 4. 2. 2 (Kotz6'sTransl., vol.ii.p. 11) ; Voet, 26. 8. 9. 

» V. d. L. 1. 4. 1. * Gr. 1. 8. 5. « Gr. 3. 1. 26. 

8 I. e. unassisted. V. d. K. Th. 128 and 474 ; Dig. 4. 4. 16 pr. No 
distinction can reasonably be drawn between a minor whose parents 
are alive and one whose parents are dead. As regards contractual 
capacity, they are in exactly the same position. V. d. K. Th. 474 ; 
Dictat. ad Gr. 3. 1. 26 ; Holl. Cons., vol. vi, pt. 2, no. 30. Van der 
Keessel rightly dissents from the view of Groenewegen (de leg. abr. ad 
Cod. 4. 26. 2) and Voet (14. 6. 4) that minors above the age of puberty 
whose parents are alive are bound by their contracts until relieved by 
restitutio in integrum. 

' Cens. For. 1. 4. 43. 2. For the Senatus-GonsuUum Macedomanum 
forbidding loans of money to filii familias see below, p. 263, n. 7. 



40 THE LAW OF PERSONS 

' ipso jure void ' must not, however, be taken too literally, 
for, as will be seen, such obligations are not so much void 
as voidable at the minor's option.^ 
Excep- 3. The first exception to the rule of non-liability is men- 

thTrule tioned by Grotius in the passage above cited, viz. so far 
of non- as the minor has been benefited.^ This means that when 
!'*v^!!?7^'' ■ a contract has been executed in a minor's favour he 

(a) When ,.,.,. 

the minor cannot evade the corresponding liability, or set up his 
benefited ■ minority as a defence, provided that in view of all the 
circumstances of the case the contract was for liis benefit.^ 
To this head may be referred a minor's liability for neces- 
saries, or for money borrowed and expended on necessaries.* 
The liability is, indeed, rather quasi-contractual than 
contractual,^ and rests upon the principle stated by Pom- 
ponius : ' Nam hoc natura aequum est neminem cum 
alterius detrimento fieri locupletiorem.' ® 

(b) Trade 4. The next exception is when a minor carries on a pro- 
andpro- fession, trade, or business. He may contract in relation 
con- thereto, and cannot obtain relief by restitutio in integrum 
tracts; ^ respect of consequent loss or damage.' A female 

minor is in this regard in the same case as a male.® 
Are the 5. It has been said above that the phrase ' ipso jure 

tracts ^oiA. ' must not be taken too literally. This appears from 
of an un- the fact that the other party to the contract is bound, if the 
^iaoT minor through his tutor, or the late minor after majority, 
void or on his own motion takes steps to enforce the contract.^ 
voidable ? In other words, a contract entered into by a minor, un- 
assisted, may be ratified either during, his minority or 
after its determination.^" Voet adds that if a minor seeks 
to enforce a contract made by him without his tutor's 

^ For Ceylon law herein see Pereira, The Laws of Ceylon, pp. 185 S. 

" Gr. 3. 1. 26. 

3 Gr. 1. 8. 5 ; 3. 6. 9 ; 3. 30. 3 ; Van Leeuwen, 1. 16. 8 ; Voet, 
26. 8. 2 ; Nel v. Divine, Hall & Co. (1890) 8 S. C. 16. 

* Van Leeuwen, uii sup. ^ Gr. 3. 30. 3. 

8 Dig. 12. 6. 14, and 50. 17. 206. 

' Cens. For. 1. 4. 43. 5 ; Oericke v. Keyter (1879) Buch. 147 ; Biesle v. 
McMullin (1907) 10 H. 0. G. 381. 

8 Voet, 4. 4. 51. » Gr. 3. 6. 9 ; Voet, 26. 8. 3. 

" Voet, 26. 8.4 (oe?^».), and 4. 4. 44. But &&& Biesle v. McMullin, 
ubi sup. 



MINORITY 41 

authority, he may do so only on condition that he himself 
performs his part.^ He further points out that an un- 
assisted contract of a minor always creates a natural 
obligation, and therefore supports the collateral under- 
taking of a surety, provided that the minor be upwards 
of seven years of age. But, contrary to the rule usually 
appHoable to such obligations, the natural obligation of 
a minor does not preclude the condictio indebiti. Ac- 
cordingly, if the minor has made a payment in pursuance 
of an unauthorized contract he can get the money back. 
But, if he ratifies after full age, his obligation is no longer 
merely natural, but civil. ^ 

6. A contract entered upon by a minor is good without Unilateral 
the tutor's consent,^ if the advantage is all on his side, and ""^ '^^'^ ^' 
there is no corresponding disadvantage or burden. Other 
contracts, entered into with the tutor's consent, bind the 

minor * unless and until he obtains a decree of restitutio 
in integrum.® Further, a father and guardian, as we 
have seen or shall see hereafter, may ia due course of 
administration contract in the name of the minor and 
bind him by such contract, subject however to the same 
reUef.^ 

7. A minor above the age of seven years is liable for Liability 
his delicts and of course for his crimes.' With regard yets and 
to delicts Voet says that if there is wrongful intention the crimes. 
minor is always liable. If, on the other hand, he has 

done injury through slight or very slight fault {levi vel 
levissima culpa), without wrongful purpose, he should be 
excused, or at least relieved from punishment by resti- 
tutio in integrum.^ 

8. In the sphere of property-law there is nothing to Property. 

1 Voet, 26. 8. 3 ; V. d. K. Th. 529. But, says Van der Keessel, ' a 
minor, who has become a party to a bilateral contract which has been 
executed, may recover property alienated by him in terms of the con- 
tract, but on his side is only bound qvatenvs locupletior foetus est.' 

'^ Voet, 26. 8. 4. ^ Gr. 1. 8. 5 ; Voet, 26. 8. 2. 

* Voet, 26. 8. 3. ^ Gr. 3. 48. 10 ; Voet, 4. 4. 52. 
8 Gr. ubi sup. and 1. 8. 8 ; V. d. K. Th. 133. 

' Gr. 1. 4. 1 ; 3. 1. 26 ; 3. 48. 11. 

* Voet, 4. 4. 45 ; but not, I think, in the modem law. 



42 



THE LAW OP PERSONS 



Restitu- 
tio in 
integium. 



prevent a minor from acquiring o-wnership/ but he 
cannot alienate or charge his property ^ without his 
parent's or tutor's authority ; ^ which, as we have seen, in 
the case of the alienation or hypothecation of immovables 
is not sufficient without an order of Court.* 

Minors under the age of puberty are incompetent to 
make ^ or to witness a will.® 

9. Restitutio in integrum, which has been already men- 
tioned, is an extraordinary remedy, by which the Court 
relieves a person from the consequences of a transaction 
into which he has entered and so far as possible restores 
the status quo ante. It is granted to minors when it 

1 Dig. 41. 1. 11. 

^ Gr. 1. 8. 5 ; 2. 48. 4 ; Van Leeuwen, 2. 7. 8 ; nor make a gift 
mortis causa (Gr. 3. 2. 23 — from whom Sohorer, ad loc, dissents) ; nor 
discharge a debt by release (Gr. 3. 41. 8) ; or by novation (Voet, 
46. 2. 8) ; nor make a valid payment of a debt (Gr. 3. 39. 11) ; 
i.e. he may recover the money if still intact; if this is impossible the 
payment holds good (Ibid.). 

" It is not clear that he can do so even with such authority. By 
the earlier Civil Law he could (Inst. 2. 8. 2; Dig. 26. 8. 9. 1 and 41. 1. 11) ; 
but the restrictions imposed by the Oratio Severi and later enactments 
on alienation by the tutor in the course of administration applied 
equally to alienation by the pupil with the tutor's authority. Property 
included within the scope of these laws was inalienable either by tutor 
or by pupil without an order of Court. Vinnius ad Inst. 2. 8. 2. ad init. ; 
Girard, p. 216. After Constantino the statutory restriction extended 
to all immovables and to valuable movables. Cod. 5. 37. 22. Grotius 
(1. 8. 5) says, without qualification, that a minor cannot alienate; and 
Van der Keessel (Th. 129) requires the consent of the pupillary magis- 
trates for the alienation even of movables. But this opinion seems to 
be inferred from local keuren (Dictat. ad loc), and does not make com- 
mon law. Gifts by a minor were prohibited by Roman Law (Girard, 
vhi Slip.) ; but in Roman-Dutch Law donations by minors do not seem 
to be distinguished from their other contracts. (Jens. For. 1. 4, 12. 3 ; 
Voet, 39. 5. 7 {ad fin.). Van der Linden (1. 15. 1) says that a minor 
cannot make a donation to his guardian, but lays down no rule that 
donations by minors -made with the authority of their tutors are other- 
wise invalid. The conclusion to be drawn from the authorities seems 
to be that in the modem law a minor is not incapable of alienating his 
movable property with the consent of his guardian even by way of gift. 

* Voet, 26. 8. 5 ; 27. 9. 1 and 4. ^ Gr. 1. 6. 3 ; V. d. L. 1. 4. 1. 

' Gr. 2. 17. 21 ; V. d. L. 1. 9. 1. By the Roman Law (Inst. 2. 10. 6), 
and Roman-Dutch Law, the witnesses to a will must be males above 
the age of puberty. By Cape Law, Act No. 22 of 1876, sec. 2 : ' Every 
person, except as hereinafter excepted, above the age of fourteen years, 
who is or may be competent to give evidence in any Court of Law shall 
be competent and qualified to attest the execution of a will or other 
instrument.' 



MINORITY 43 

appears that they have suffered by reason of the weakness 
of youth.^ This remedy is given in respect not only of 
contracts, but also of alienation of property by donation 
or otherwise ; of compromises ; and even of judicial pro- 
ceedings (e.g. when he has failed to put in his pleadings in 
time).^ The benefit of restitution accorded to a minor 
devolves on death,' but is not generally available to 
persons who have bound themselves as sureties for a 
minor, therein differing from other cases of restitution.* 
Restitution is refused when a minor has fraudulently mis- 
represented his age.® It is waived by ratification after 
full age, which may be express or implied.* It seems 
that acquiescence with knowledge or means of knowledge 
of the true circumstances for four years after full age 
amounts in law to ratification and excludes restitution, 
which in other cases is only barred after thirty years.' 
A minor cannot obtain restitution against marriage on 
the groimd of minority alone,® nor against his liability for 
crime or serious delicts.® By the Civil Law a minor ^° might 
exclude the benefit of restitution by oath. This was not 
allowed in the United Provinces.^^ 

iGr. 1. 8. 8; 3.48.9-13; Voet, 4. 4. 12 ff. In Ceylon it is a (question 
whether the remedy of restitutio in integrum has not been impliedly 
abrogated by the provisions of the Civil Procedure Code. Pereira, p. 811. 

^ Voet, 4. 4. 14 ff. ' Voet, 4. 4. 38. 

* Gens. For. 1. 4. 43. 10 ; Voet, 4. 4. 39. 

= Voet, 4. 4. 43. See Johnston v. Kdser (1879) K. 166 ; Vogel & 
Co. V. Qremtley (1903) 24 Natal Law Reports, 252 ; and for Ceylon 
— Wijesowia v. Ibrahimsa (1910) 13 New Law Reports, 195. In this 
case the Court upheld a sale of immovable property, though made 
without sanction of the Court. 

« Voet, 4. 4. 44 ; Van der Byl v. Solomon (1877) Buch. 25. 

' Gr. 1. 8. 8 ; 3. 48. 13 ; Cens. For. 1. 4. 42. 6, and 1. 4. 43. 8-9. 
Voet speaks on this subject vrith uncertain voice. See Compendium 
4. 1. 5, and Comment, ad Pandect. 4. 1. 16 and 20. The prescription 
itself may in turn be annulled by restitution. Schorer, ad Gr. 3. 48. 13. 
Time does not begin to run after full age unless the late minor knew or 
might have known of the laesio which entitles him to relief. Cens. For. 
loc cit 

8 Voet, 4. 4. 45 ; Haupt v. Haupt (1897) 14 S. C. 39. 

9 Voet, ibid. " Above puberty. Voet, 4. 4. 46. 

" Cens. For. 1. 4. 43. 13-15 ; Groen. de leg. ahr. ad Cod. 2. 27. 1. 
The enactment in the Code is attributed to the Emperor Alexander, and 
there is an authentica of the Emperor Frederick I (2 Lib. Feud. 53. 3) 
in the same sense. The commentators hesitate to treat such an oath as 



44 THE LAW OF PERSONS 

CHAPTER IV 

GUARDIANSHIP 

Guar- In the Institutes of Justinian under the titles of tutela 

dianship. ^^^ ^^^^^ ^^j.^ considered two several institutions designed 
by the law for the protection of persons who, though not 
subject to parental control, are nevertheless on account 
of immaturity of years or for other like cause incompetent 
to be in aU respects their own masters. The first of these, 
tutela, related to young persons alone, and ended mth 
puberty. The second, in the case of young persons, ex- 
tended from the fourteenth to the twenty-fifth birthday, 
and was also applicable to the case of lunatics and prodigals. 
In Roman-Dutch Law there is one kind of minority 
only ; which, as we have seen, now ends by statute at 
twenty-one. The distinction between tutela and cura 
has therefore largely disappeared.^ But the terms tutor 
and curator are still retained to denote various cases of 
control. 

In this chapter we shall consider : (1) the different kinds 
of guardianship and how guardians are appointed; (2) 
who may be guardians ; (3) the powers, rights, and duties 
of guardians ; (4) actions arising out of guardianship ; 
(5) how guardianship ends. 

Section 1 . The Kinds of Guardians and the Appoint- 
ment OF Guardians 

The In Roman Law three principal kinds of guardians were 

^rdians: recognized : (1) Tutores testamentarii, i.e. guardians 

appointed to minors in his power by the father or other 

devoid of efEect. See Groenewegen, loc. cit., and the same author's 
note ad Gr. 1. 8. 5, and Voet, 4. 4. 46-8. There is a decision in 
Neostadius {Supr. Cur. Decis., Dec. 80) to the effect that a sale by a 
minor confirmed by oath holds good. But Van Leeuwen concludes : 
facilior est responsio nullum jusjurandum ejus eiHcaciae esse, ut 
negotium actiimve de jure invalidum confirmare queat. In the 
modem law the question does not arise. 

1 Gr. 1. 7. 3 and Sohorer ad loc. ; Voet, 26. 1. 7 ; 27. 10. 1 ; V. d. K, 
Th. 111. 



GUARDIANSHIP 45 

male ascendant ; (2) Tutores legitimi, i.e. the nearest 
agnatic (afterwards cognatic^) relatives of the minor, 
who acted in default of testamentary appointment ; 
(3) Tutores dativi, i.e. guardians appointed by the magi- 
strate in default of either of the first two classes. 

In early Germanic Law testamentary guardians were (a) Tutors 
unknown, but fathers sometimes, before their death, ^«ta,men- 
committed the care of their minor children to persons in 
whom they confided ; ^ failing these, some near relative 
or relatives were considered to be entitled to the guardian- 
ship ; failing these, again, an appointment was made by 
the King and in later times by the Count or other feudal 
lord, who also claimed the prerogative of confirming 
guardians belonging to either of the first-named classes. 
This prerogative right was the source of the upper guar- 
dianship (opper-voogdij) of minors, which in later Dutch 
Law and also at the present day is vested in the Court. 

The Roman-Dutch Law here, as elsewhere, has worked 
the principles of the Civil Law into the original Germanic 
fabric. When in later times testaments came into use, 
testamentary guardians began to be appointed, and the 
phrase was taken to include guardians appointed, whether 
in an ante-nuptial settlement or by other judicial or 
notarial act inter vivos,^ and that by the mother no less 
than by the father of the minor children.* 

A special variety of testamentary guardian was the (b) Tutora 

assumed or substituted guardian, i.e. a guardian named by 

a testamentary guardian, by virtue of a special authority 

1 Nov. 118, capp. 4-5 (a. d. 543). 

^ Hoola van Nooten, Vaderlandsche Rechten, vol. i, pp. 644-6 ; and 
see on the whole subject Bechtsg. Ohs. pt. 4, no. 9. 

* Hoola van Nooten, vol. i, p. 558 ; V. d. L. 1. 5. 2. 

* Gr. 1. 7. 9 ; Van Leeuwen, 1. 16. 3 ; Voet, 26. 2. 5. But in South 
Africa, by the Administration of Estates Act, 1913, sec. 71 (re-enacting 
and amending Cape Ord. No. 105, 1833, sec. 1) : 'It shall not be lawful 
for any person except — (a) the father of a minor ; or (b) the mother of 
a minor whose father is dead or has abandoned the minor ; or (c) the 
mother of a minor to whom the custody of such minor has been given 
by a competent Court ; by any will or other deed to nominate any tutor 
or tutors to administer and manage the estate or to take care of the 
person of such minor.' This is without prejudice to the right to appoint 
a curator nominate. 



assumed. 



46 



THE LAW OF PERSONS 



The guar- 
dianship 
of blood 
relations. 



unknown 
in the 
modern 
law. 



(c) Tutors 
dative. 



Orphan 
Chambers. 



conferred upon him in that behalf, to act either together ^ 
with such testamentary guardian, or in substitution for 
him, particularly in the event of his death.^ 

Failing testamentary guardians, the guardianship or 
the appointment of guardians devolved upon the nearest 
relatives of the minor and, in particular, as Grotius * teUs 
us, went to the 'four quarters' {vier vieren-deelen), i.e. 
to the nearest of kin on the side of each of the four grand- 
parents. ' Afterwards, however,' he continues, ' it was 
thought better that guardians should be appointed by 
the authorities, that is, by the Court of Holland, by the 
town and country Courts, or by the Orphan Chambers,* 
which are in several places charged with that duty, the 
upper guardianship of orphans remaining, however, in 
the Court. These authorities are accustomed and bound 
in appointing guardians to take the advice of the nearest 
relatives, and to choose the guardian from amongst them 
so far as this can be done with advantage to the 
wards.' 

The consequence of the change described by Grotius 
was to extinguish the last survivals of the old Gtermanic 
guardianship of blood-relations as a separate institution, 
so that Grotius and Voet are able to speak of ' bom ' or 
' lawful ' guardians as no longer recognized by the com- 
mon law of HoUand.® All guardians thenceforward 
were either : (1) testamentary ; or (2) appointed ; * and 
the intermediate class of ' legitimi tutores ' disappears.' 
Over both of these classes, it is important to remember, 
subsists the upper guardianship of the Sovereign exercised 
through the Courts of Justice. 

At this point something may conveniently be said with 
regard to the Orphan Chambers. These were official 

' Voet, 26. 2. 5 {ma0 van assumptie). Infra, p. 49, n. 8. 
^ Hoola van Nooten, op. oit., p. 593 {magt van sunogatie of subdi- 
tutie). Vide Boey, Woorden-tolk, suh voce Voogdye ; V. d. L. 1. 6. 7. 
2 Gr. 1. 7. 10 ; Van Leeuwen, 1. 16. 4. 
« Voet, 26. 5. 6. 

6 Gr. 1. 7. 7-8 ; Voet, 26. 4. 4 ; V. d. K. Th. 117. 
« Gr. 1. 7. 10 ; Voet, 26. 5. 5 ; V. d. L. 1. 5. 2. 
' Hoola van Nooten, vol. i, p. 560. 



GUARDIANSHIP 47 

boards charged with the superviaion of orphan children,'^ 
which so early aa the middle of the fifteenth century were 
already in existence in most of the towns of Holland.^ 
Their functions were variously defined by the heuren of 
the various towns. Strictly speaking, their authority 
was co-ordinate merely with that of the testamentary 
guardian,' but they constantly tended to supervise * and 
sometimes to encroach upon ^ his fimctions. Thua in the 
town of Alkmaar, testamentary guardians must be con- 
firmed by the Orphan Chamber, though as a rule such 
guardians did not require confirmation.^ Consequently 
it was the common practice of testators when appointing 
guardians by will to express in clear terms their wish to 
exclude the Orphan Chamber from interference with the 
estate.'' Even this did not always produce the desired 
result.^ 

The word ' guardianship ' is not free from ambiguity, is a sur- 
fer it implies sometimes guardianship of the person, ^^ren^ 
sometimes administration of the property, sometimes ipso jure 
both. Where property alone is concerned the term S"*^""^'^"^ 
* curatorship ' may be employed. But it is not always 
easy to distinguish the two functions, for the person who 
controls the property tends also to control the person. 

'^ i.e. of minor children who had lost one or both parents (Gr. 
1. 7. 2) ; sometimes also of onbestorven kinderen (Gr. 1. 6. 1). 

" Hoola van Nooten, vol. i, p. 550. 

3 Ibid. pp. 564 ff. * Gr. 1. 9. 2. ^ Van Leeuwen, 1. 16. 3. 

° This is implied by Van Leeuwen, who mentions the case of Alkmaar 
as exceptional ; but in Cens. For. 1. 1. 17. 3 he says : hodie omnes 
omnino tutores ex inquisitione dantur aut confirmantur. See Voet, 
26. 3. 1 and 26. 7. 2 {ad fin.). It appears from Van der Keessel {Th. 116) 
that the practice varied. In South Africa confirmation is always 
necessary (Administration of Estates Act, 1913, sec. 73), provided 
that a father or mother does not require letters of confirmation (Ibid.). 

' Hoola van Nooten, vol. i, p. 567 ; V. d. L. 1. 5. 2-3. 

' Van Leeuwen, ubi sup. The Orphan Chamber was abolished in 
Cape Colony by Ord. 103, 1833, which vested its functions in the 
Master of the Supreme Court. In South Africa Orphan Chambers 
exist at the present day and the administration of estates is often left 
to them, but they are not official and no longer appoint guardians. 
They are in fact merely Trust Companies. In Brit. Gui. the Orphan 
Chamber was abolished by Ords. Nos. 17 and 18 of 1844, which created 
in its place the office of Administrator- General. 



48 THE LAW OF PERSONS 

This is seen when we consider the relation of guardians 
testamentary or dative to a surviving spouse. Guardian- 
ship certainly does not exclude the parental power/ but 
neither is it excluded by it. A surviving parent, it must 
be remembered, was not, as such, guardian of the property 
of hia or her minor children,^ however much parental 
power might imply control of the person. Accordingly 
such parent, unless appointed by the deceased spouse^ 
or by the Orphan Chamber or Court,* coiild not lawfully 
intermeddle with the estate.^ This seems somewhat 
extreme in the case of the father, who having been sole 
administrator of the minor's property during the subsis- 
tence of the marriage, might reasonably expect to con- 
tinue to exercise the same functions after his wife's death, 
at all events as regards property not coming to the child 
ex parte materna. The reasonableness of this claim is 
recognized by the law of South Africa, which gives the 
father the exclusive control of the person and also of the 
property of his minor children, during the whole of his 
life, and even permits him to bestow equally extended 
powers upon guardians appointed by his will to act after 
his death.* This woiild seem to exclude the mother 
altogether from the control of the persons of her own minor 
children,' which in the Dutch Law she exercised concur- 
rently with the testamentary guardians.^ 

On the other hand, when no testamentary guardians 
have been appointed she is solely entitled to the control 

^ Gr. 1. 7. 8 ; Hoola van Nooten, vol. i, p. 569. 

2 Gr. ubi sup. ; Voet, 26. 4. 4. But the parents had a prior claim 
to be appointed, and usually were appointed, to act concurrently with 
one or two other tutors dative. Gr. 1. 7. 11-12. 

^ Van Leeuwen, 1. 16. 3. 

^ Gr. 1. 7. 10. 

« Gr. 1. 7. 8 ; Voet, 26. 4. 4. In Brit. Gui. a father has never been 
required to apply to the Court to be appointed guardian of his minor 
children along with another person named as guardian in the wiU of 
a deceased mother [G.]. 

6 Van Rooyen v. Werner (1892) 9 S. C. 425. 

' Ibid., per de Villiers C. J. at p. 431. But a deceased father cannot 
exclude the mother except by appointing a testamentary guardian 
in her place. Voet, 27. 4. 2. 

8 V. d. K. Th. 118. 



GUARDIANSHIP 49 

of the person to the exclusion of guardians dative.^ After 
the death of both parents the guardians, whether testa- 
mentary or dative, exercise personal control and also 
administer the property conjointly.^ 

In South Africa the appointment of tutors dative is 
vested in the Master of the Supreme Court, subject to 
review by the Court.^ The same official confirms testa- 
mentary tutors,* and supplies casual vacancies in case of 
death, incapacity, or removal.^ 

A testamentary tutor, as we have seen, is appointed by (d) Cura- 
parents only. But it is permitted to any person whomso- inate""""' 
ever who gives or bequeaths property to a minor or insane 
person to direct at the same time that some specified 
person shall administer it.^ A person so appointed is 
termed a curator nominate,' and if a curator nominate 
is expressly empowered to appoint another to act as co- (e) Cura- 
guardian, such other becomes (after confirmation) a curator *°^ ^■ 
assumed.^ ™'"^'^- 

^ (Cape) Van Rooyen v. Werner, uU sup. ; (Natal) In re Dolphin's 
Intestacy (1894) 15 N. L. R. 343. She does not lose her right to the 
custody of the children upon remarriage except in special circumstances. 
Voet, 27. 2. 1. 2 V. d. K. lAi sup. 

' AdministrationofEstatesAct, 1913, sees. 76 and 107. InBrit. Gui. 
tutors dative are appointed by the Supreme Court, which may require 
security and impose conditions [G.]. 

* Administration of Estates Act, 1913, sec. 73. 

' Ibid., sec. 78. By the Civil Law the mother, and by the R.-D. L. 
the surviving parent, was required within a short time of the death 
of the predeceasing spouse to notify the Court or the Orphan Chamber, 
and to apply for the appointment of guardians. Gr. 1. 7. 13; Cens. 
For. 1. 1. 16. 9. In the Civil Law the mother who failed to do so lost 
all right of succession to the minor children. Cod. 6. 58. 10. ' This 
penalty was disused in the R.-D. L. Groen. de leg. dbr. ad Cod. ubi sup. ; 
Voet, 26. 6. 4 {ad fin.) ; V. d. K. Th. 123 ; but the local statutes 
usually imposed a small pecuniary penalty. The same duty attached 
in the R.-D. L. in respect of an inheritance coming to a minor child 
during the lifetime of both parents. Gr. 1. 6. 1 ; V. d. K. Th. 103. 
Supra, p. 34. 

« Voet, 26. 2. 5 ; V. d. K. Th. 118 ; V. d. L. 1. 5. 2. 

' Administration of Estates Act, 1913, sec. 71. 

' Ibid., sec. 77 : (1) Nothing in this Chapter contained shall pre- 
vent any tutor testamentary of any minor or curator nominate of 
any estate from assuming any other person as tutor of that minor or 
curator of that estate (as the case may be), by virtue of any power 
for that purpose committed to him by the will of, or any other deed 
duly executed by, the person by whom the tutor testamentary or 

1713 B 



60 THE LAW OF PERSONS 

(f) Cura- Curators dative are appointed by the Court (in South 
dative. Africa upon the application of the Master or of some 

person interested) to insane persons or prodigals ^, either 
for the care of the person, or the administration of the 
property, or both.^ In case of minor disqualifications such 

(g) Cura- as deafness, dumbness, or the like,' curators bonis may be 

" appointed whose functions will be limited by the require- 
ments of the particular case.* 
(h) Cura- Curators ad litem are appointed to a minor or insane 
litem. person or prodigal , for the purpose of bringing or defending 
an action, when such minor has no other guardian or 
curator, or where the guardian or curator is a party to the 
litigation.® 

The various kinds of guardian, then, are : (1) tutors 
testamentary ; (2) tutors assumed ; (3) tutors dative ; 
(4) curators nominate ; (5) curators assumed ; (6) curators 
dative ; (7) curators bonis ; (8) curators ad litem ; and 
they are appointed in the ways above described. 

Section 2. Who may be Guardians 

Some Van der Linden says that some persons are prohibited 

1*™°°^ from being guardians ; others may excuse themselves.* 
qualified To the first class he assigns : (1) persons who are themselves 
bd™K subject to tutela or cura,' with whom must be included 
guardians, all persons less than twenty-five years of age, although 

curator nominate was appointed : Provided that no person shall be 
entitled or qualified to act as assumed tutor or curator unless, during 
the lifetime of the tutor testamentary or curator nominate, letters of 
confirmation have been granted to the assumed tutor or curator as 
such by the Master. 

1 Also to administer the property of persons who are absent from the 
Colony and not otherwise represented. Administration of Estates Act, 
1913, sec. 80. 

^ Such persons were known as bejaerde wezen (Gr. 1. 11. 3-4 ; Van 
Leeuwen, 1. 16. 13 ; Voet,27. 10. 3 and 6 ; V. d. K. Th. 164-5) or as 
Hofs- or Stads-Kinderen (V. d. L. 1. 5. 8). 

* Gr. 1. 11. 2. An insane or prodigal wife is placed under the guar- 
dianship of her husband ; an insane husband is not placed under the 
custody of his wife, but his property may be. Gr. 1. 11. 7 ; V. d. K. 
Th. 168. 

* Voet, 27. 10. 13. = Van der Linden, Jiidic. Prac. 1. 8. 3. 
8 V. d. L. 1. 5. 1. ' Gr. 1. 7. 6. 



GUARDIANSHIP 51 

majority may have been anticipated by marriage or venia 
aetatis ; ^ (2) women, except a mother and grandmother, 
and they only so long as they have not contracted a 
second marriage ; ^ (3) creditors and debtors of the minor, 
if the debt is considerable and the Court sees fit to 
exclude them.* 

To these the laws of the Cape and of the Transvaal add : 
(4) any person who as witness has attested the execution 
of any will which appoints such person guardian, and the 
wife or husband of such person.* 

The second class includes : (1) soldiers ; ^ (2) persons Others 
already burdened with three guardianships ; (3) persons ^^^ ^^' 
upwards of seventy years of age ; (4) persons disqualified *'^*""' 
by sickness or infirmity. This list is not exhaustive ; 
nor by the common law can any one claim exemption as 
of right. In fact, no rigid rule can be laid down ; for in 
the modern law the whole matter lies in the discretion of 
the Court.® In South Africa, however, excuses are unneces- gout^ 

1 Voet, 26. 1. 5 ; V. d. K. Th. 112 ; Sohorer ai Gr. 1. 7. 11 ; Hoola 
van Nooten, vol. i, p. 672. Of. Voet, 26. 4. 2. But a surviving spouse, 
though under age, may, it seems, be guardian to his or her children. 

2 Gr. 1. 7. 6 and 11 ; Voet, 26. 1. 2 ; V. d. K. Th. 114. But see 
Maasdorp, vol. i, p. 267, and Sohorer ad Gr. 1. 7. 11. A married woman 
may not be appointed curator over her husband if insane or prodigal. 
V. d. K. Th. 168. In South Africa, by the Administration of Estates 
Act, 1913, sec. 83 : (1) The provisions of this Act in regard to the election 
and appointment of tutors and curators shall apply to males and 
females ; (2) Letters of confirmation shall not, without the consent in 
writing of her husband, be granted to a woman married in community 
of property or to a woman married out of community of property when 
the marital power of the husband is not excluded. 

' Grotius is silent on this point. Voet (26. 1. 4),- Groenewegen 
{ad Cod. 5. 34. 8), and van Leeuwen {Oens. For. 1. 1. 16. 19) a^ee that 
there is no absolute disqualification. See also Sande, Decis. Fris. 
2 9 1 

' * Cape, Act No. 22 of 1876, sec. 4 ; Transvaal, Ord. No. 14 of 1903, 
sec. 4 ; 0. F. S. Ord. No. 11 of 1904, sec. 4. Brit. Gui., Ord. No. 12 
of 1906, sec. 8, contains a provision to the same effect. In Natal there 
is no such disqualification (see Law 2 of 1868, sec. 7). In Ceylonjthere 
is no statutory provision. Voet adds to the disqualifications men- 
tioned in the text : (5) a person not subject to the jurisdiction cannot be 
tutor dative (26. 5. 3) ; J;(6) persons expressly prohibited by the will of 
either parent (26. 1. 4). 

* Grotius (1. 7. 6) says that soldiers cannot be guardians ; so also 
Voet(26. 1.4). VanderKeessel(rfe. 113)agrees with Van der Linden. 

» Gr. 1. 7. 14 ; Voet, 27. 1. 12 ; V. d. K. Th. 124. 

b2 



52 THE LAW OF PERSONS 

Africa sary, for guardianship is at the present day a purely 

fhris*"' voluntary office, which no one can be compelled to under- 

volun- take against his will.^ This marks a departure from the 

*'"'''■ Roman-Dutch common law, according to which every 

one who was named guardian was bound to accept the 

office, and in the case of unwillingness could be compelled 

to undertake it by civil imprisonment.^ 

Section 3. The Powers, Rights, and Duties 
oe gxtabdians 

The Without seeking to distinguish too exactly between 

f "*^tion"'' the duties and the powers or rights of guardians, we may 
of guar- classify their functions of whatever kind under the 
■^'^"^ = following heads. 

(1) To find 1. The duty to find security. In Holland practice varied 
security; j^ different localities. Van der Linden says«: 'The 

practice of guardians finding security is in our law fairly 
out of use, though where there are weighty reasons for 
doing so the Court may demand it.' But in South Africa,' 
by the Administration of Estates Act, 1913, s. 82, every 
tutor and every curator now gives security, except only 
a testamentary tutor or a curator nominate when : {a) he 
is the parent of the minor ; or (6) has been nominated 
by will executed before the commencement of the Act 
(October 1, 1913), and has not been directed by the will 
to find security ; or (c) has been nominated by will executed 
after the commencement of the Act and the testator has 
directed the Master to dispense with security ; or {d) 
the Court otherwise directs. 

(2) to 2. Inventory. Guardians must make a full inventory of 
make an ^^^ estate which they are to administer, or demand an 

inven- •' ' 

tory ; i ^ Maasdorp, p. 244 ; Administration of Estates Act, 1913, sec. 73 (2). 

In Brit. Gui. a beneficiary under the will, or the parent, child, grand- 
parent, grandchild, brother, sister, uncle, or aunt of the testator, 
must obtain the permission of the Court to enable him or her to refuse 
the guardianship. A non-relative is not compelled to act, but must 
file with the Registrar an affidavit that he does not desire to act. Ord. 
No. 12 of 1906, sec. 16 [G.]. 

2 Gr. 1. 7. 16 I Van Leeuwen, 1. 16. 5 ; V. d. L. 1. 5. 1. 

3 V. d. L. 1. 6. 3. Of. Gr. 1. 9. 1 ; Voet, 26. 7. 2 ; V. d. K. Th. 134. 



GUARDIANSHIP 



53 



(3) to dis- 
tribute 
the 



inventory from a surviving parent.^ In South Africa 
every tutor and every curator must make such inventory 
within thirty days ^ of the date of his entering on office. 
If a guardian fails herein, he is liable (besides other 
penalties) ^ to removal ; as he is, also, t£ he wilfully omits 
items of credit or inserts false items of debit.* A surviving 
parent who, in preparing the inventory, fraudulently con- 
ceals any property forfeits his or her interest therem.* 
A similar inventory must be made by parent or guardian 
in the event of any property coming to a minor from any 
source whatever, e. g. by testament, either during the life- 
time of both parents or after the death of one or both of 
them.® The inventory when complete must be delivered 
to the Orphan Chamber,' or in Cape Colony to the Master 
of the Supreme Court. 

3. Distribution of the estate. The next duty of the 
guardian (and this is the object of the inventory), is, 
subject to the control of the proper authority, to see that estate ; 
each child has assigned to him his proper share in the 
property in question.^ This done, the guardian proceeds 

1 Gr. 1. 9. 3 and 8; Van Leeuwen, 1. 16. 6 ; Voet, 26. 7. 4 ; V. d. K. 
Th. 135-6 and 146 ; V. d. L. ubi sup. The first-dying parent may 
not dispense the survivor from the duty of preparing an inventory. 
V. d. K. TA. 137. J f tf e, j 

2 Administration of Estates Act, 1913, sec. 85. 
» Ibid., sees. 108-9. 

* Voet, 26. 7. 5. 

5 Gr. 1. 9. 4, and Schorer's note ad loc. ; V. d. K, Th. 139, dissenting 
from Voet (26. 7. 5), who questions whether forfeiture obtains. SemUe, 
in any event an action lies for damages. 

° Gr. 1. 6. 1 ; and 1. 9. 5. If a curator nominate has been appointed 
to the property in question, the duty of making an inventory falls on 
him and not on the parent. V. d. K. Th. 140-1. 

' Gr. 1. 9. 3 and 8 ; Van Leeuwen, 1. 16. 6 ; V. d. K. Th. 135 ff. 
A testator might by his wiU : (1) exclude the Orphan Chamber j 
(2) remit the duty of accounting ; but such directions were not always 
effectual. Gr. 1, 9. 3 ; Van Leeuwen, 1. 16. 3 and 6 ; Voet, 26. 7. 4 ; 
V. d. K. Th. 135-8. In the latter case it was sometimes permitted to 
furnish an inventory closed and sealed ; and Cape Law allowed this 
course : (a) when the testator had so directed ; (b) in the case of a sur- 
viving spouse whom the deceased spouse had appointed tutor and 
boedelhouder. Ord. 105, 1833, sec. 18. This is now repealed. There 
is no corresponding provision in the Administration of Estates Act, 
1913. For Boedelhouder see below, p. 100. 

8 Gr. 1. 9. 6 and 8 ; V. d. K. Th. 142. 



54 



THE LAW OF PERSONS 



(4) to 
maintain 
and edu- 
cate the 
minors : 



to deal with the estate of the minors in his charge, retaining 
it under his own control as administrator, or placing it in 
the hands of the proper authority, according to the 
requirements of the local law.^ A surviving parent may 
not \mder any circumstances proceed to a second marriage, 
without first assigning to the minor children of the first 
marriage their proper shares in the joint estate ^, or at all 
events giving security for their future payment. In South 
Africa this security takes the form of a notarial general 
mortgage-bond passed by the surviving spouse. It is 
known as a deed of Kinderbewys? 

4. Maintenarvce and ediication. All preliminaries being 
properly settled, it is next the duty of the guardian to 
provide for the maintenance and education * of the ward 
according to the directions of the father, if he has left any, 
and, failing such, to see that the child is educated by the 
mother or other near relations.* 

The guardian must take care that his expenditure in 

1 V. d. K. Th. 143 and 153. By Cape Ord. 105 of 1833, sees. 25 ft., 
tutors dative, curators dative, and curators bonis must pay their 
wards' moneys to the Master of the Supreme Court, except in so far 
as it may be required for the immediate payment of debts, or for the 
maintenance of their wards. 1 Maasdorp, p. 255. This clause is 
re-enacted by the Administration of Estates Act, 1913, sec. 88, which 
extends the above provision to a tutor testamentary and curator nomin- 
ate ' subject to the terms of the wiU or deed by which he was appointed '. 
Securities must be deposited. Gr. 1. 9. 9. 

2 Gr. 1. 9. 6 ; Voet, 23. 2. 100 ; V. d. K. Th. 142 ; V. d. L. 1. 5. 4 ; 
Begtsg. Obs., pt. 1, no. 15 ; Boey, Woordentolk, siib voce Vertigting ; 
Ontwerp, sec. 411 ; Cape Act 12 of 1856, sees. 1 and 2, re-enacted 
by the Administration of Estates Act, 1913, sec. 56, which, however, 
does not require such payment or security, if the estate is of less value 
than one hundred pounds. 

' 1 Maasdorp, p. 19 ; 2 Maasdorp, p. 247 ; and see the judgment of 
Hopley J. in Maxwell & Earp v. Dreyer's Estate (1908) 25 S. C. 723. 
In Brit. Gui. the instrument in use was called an Act of Verweezing. 
By the Married Persons Property Ordinance (No. 12 of 1904), sec. 26, 
no Act of Verweezing shall be necessary before or upon the marriage of 
any widower or widow. 

* Gr. 1. 9. 9 ; Voet, 26. 7. 1 and 6. Generally speaMng a surviving 
mother is entitled to the custody (V. d. K. Th. 141), notwithstanding 
a remarriage (Voet, 27. 2. 1). A surviving parent must provide for 
the children, males until their eighteenth, females until their fifteenth 
year, out of the proceeds of the minor's estate. Gr. tiiii sup. Van der 
Keessel, however {Th. 152), says until full age. 

5 Gr. ttbi sup. ; Voet, 27. 2. 1. 



GUARDIANSHIP 55 

this regard keeps well within the limits of the annual 
income of the estate, unless ia very special circumstances, 
which should be made the subject of ^n application to the 
Court.i 

5. Administration of the ward's property.^ This includes (5) to ad- 
the general supervision and management of the minor's ^^^^l 
estate, in which task the guardian must display the perty; 
diligence which a bonus paterfamilias applies to his own 
affairs.* His expenditure must be such as is demanded 

by the interest and credit of the minor, regard being had to 
the value of the estate and the minor's position in life.* 
He must preserve and secure the property,* call in and 
enforce debts, ^ invest in good securities,' and meet the 
minor's liabilities as they fall due. When the guardianship 
comes to an end, the guardian must properly wind up the 
business of his office, and is deemed to remain guardian for 
the purpose.* Where there are more guardians than one, 
it is not necessary that they should all act ; but, whether 
he acts or not, each is responsible for the acts of every 
other.® 

6. Alienation of property. A guardian may, in due course (6) not to 
of administration, seU ^^ or mortgage any movable property i^^y! 
imder his charge. But the alienation or hypothecation of ^.Mes 
immovable property, except by leave of the Court,^^ is leave of 
entirely void. Such leave is only given after fuU inquiry, ^°^^ > 

^ Voet 27. 2. 2. 

" Gr. L 9. n'; Van Leeuwen, 1. 16. 8 ; V. d. L. 1. 5. 3. 

" Dig. 26. 7. 33 pr. (but see Dig. 27. 3. 1 pr.) ; Voet, Compendium, 
26. 7. 3. 

* Voet, 26. 7. 6 ; 27. 2. 2. 

5 Voet, 26. 7. 8. " Voet, 26. 7. 7. 

' Gr. 1. 9. 10 ; Van Leeuwen, 1. 16. 8 ; Voet, 26. 7. 10 ; V. d. K. 
Th. 153-6 ; Van der Byl S Co. v. Solomon (1877) Buch. at p. 27 per 
de Villiers C.J. 

' Voet, 26. 7. 15. If the guardianship is determined by the minor's 
death, the guardian must render accounts and make over the property 
to his heir. V. d. K. Th. 159. 

» Gr. 1. 9. 11 ; Voet, 26. 7. 1 ; V. d. L. 1. 6. 3 (ad fin.). Remunera- 
tion of guardians — vide infra, p. 61, n. 3. 

" Gr. 1. 8. 5 ; Voet, 27. 9. 4. Grotius adds : ' doch met kennisse 
van de weeskamer daer de zelve niet en is uitgesloten '. 

'■^ Gr. 1. 8. 6. Van Leeuwen (1. 16. 9) says, ' otherwise than with the 
consent of the Court or local tribunal '. 



56 THE LAW OF PERSONS 

and it is, besides, usual to consult the nearest relatives.^ 
The measures proposed must be necessary for payment of 
debts, maintenance, or marriage, of the ward, or otherwise 
to his manifest advantage.^ The word ' immovables ' 
extends to such incorporeal rights as are commonly 
included under the term immovable property, and to 
the cession of rights of action relating to such property.^ 
Alienation includes any act of the guardian whereby a real 
right of the ward is in any way diminished, lost, or aban- 
doned.* Failing a judicial decree (where such is necessary) 
everything that takes place m the course of or incidentally 
to such alienation is ipso jure null and void.* The same 
applies if the decree is shown to have been obtained 
from the Court by fraud.* 

The prohibition of the sale of immovables is stated by 
Grotius to extend to money put out at interest and 
rents.' Van der Keessel says that the same rule ought 
to be laid down in respect of public Dutch or foreign 
securities.* Voet goes still further and adds to the hst 
all movables which are not perishable in their nature [quae 
servanda servari possunt),^ as gold, silver, and jewellery, 
whereas perishable movables the guardian not only may 
sell, but must.^" It appears that by the law of Holland 
even movables could not be sold without proAdous notice 
to the Orphan Chamber (unless this were expressly 
excluded), and by pubhc auction.^^ In the case of immov- 
ables also the sale must be by public auction. Otherwise 
(which is not the case with movables) the sale will be 
void. In both cases the guardian is answerable ui 
damages. ^^ 

1 Voet, 27. 9. 7 ; and the Weeskamer. V. d. K. Th. 131. 

2 Voet, 27. 9. 7-8. » Voet, 27. 9. 2. 

* Voet, 27. 9. 3. But short leases are permitted and bind the ward 
even after majority. Voet, 19. 2. 17. 

6 Gr. 1. 8. 6. 8 Voet, 27. 9. 9. 

' Renten ende pachten. 6r. 1. 8. 6. 

8 V. d. K. Th. 130. » Of. Cod. 5. 37. 22. 6. 

i» Voet, 27. 9. 1. But see V. d. K. Th. 130. 
" Gr. 1. 8. 5 ; Van Leeuwen, 1. 16. 8 ; V. d. K. Th. 129. 
12 Gr. 1. 8. 5-6 ; Van Leeuwen, 1. 16. 9. 



GUARDIANSHIP 57 

In South Africa by the Administration of Estates Act, South 
1913, sec. 87, no tutor and no curator (other than a tutor f^gnatlon 
testamentary or a curator nominate duly authorized ofimmov- 
thereto by the wiU or deed under which he has been 
appointed) shall alienate or mortgage any immovable 
property belonging to a minor unless the Court or, when 
the Master is satisfied that the immovable property does 
not exceed three hundred pounds in value, unless the 
Master authorize the alienation or mortgage of such 
property. But the Master may authorize the mortgage 
of immovable property belonging to a miaor to an extent 
not exceeding three hundred pounds, if satisfied that the 
mortgage is necessary for the preservation or improvement 
of the property, or for the payment of expenses necessarily 
incurred in connexion therewith, or for the maintenance 
or education of the minor. The same Act by sec. 86 saves 
the common law as regards the powers and duties of tutors 
except so far as they are affected by that Act. But it is 
submitted that in regard to the sale of the ward's property 
the principle ' Expressio unius est exclusio alterius ' 
holds, and therefore all that is required of the guardian 
in alienating his ward's movable property ia that he 
should exercise a wise discretion and in matters of difficulty 
seek the guidance of the Court.^ 

The ward's remedies in respect of unauthorized aliena- Kemediea 
tion are two: against the tutor and against the aHenee. o"un^au- 
Against the first he has the actio tutelaedirecta. From the thorized 
second he may vindicate the property (together with aU tion. 
fruits, if the defendant's possession is mala fide ; but if 
it is bona fide together with fruits existing at the date 
of action 'brought) . If, however, the purchase-money has 
been received and applied to the m i nor's use, it must be 
refunded with interest as a condition precedent of the 
return of the property .^ A sale of immovable property 
made by a minor without judicial decree and without his 
guardian's authority caimot be impeached on behalf of 

1 In Brit. Gui. a guardian may dispose of valuable movables with- 
out leave of the Court [G.]. ' Voet, 27. 9. 10. 



58 THE LAW OP PERSONS 

such minor, where the minor has falsely represented him- 
self as of full age.^ 
Ratifica- An alienation void ab initio may be ratified on fuU age. 
voMalie E,atification is express or tacit. An example of tacit 
ations. ratification is when the ward, having reached full age, 
claims the purchase-money from the guardian ia an 
actio tutelae; or when the ward after majority allows 
a certaia time, which varies with the circumstances, to 
elapse without asserting his right.^ When ratification 
has taken place the transaction may, in Roman-Dutch 
Law, still be rescinded on the ground of laesio enormia,'* 
but in the Cape Province and in the Orange Free State 
this is no longer law.* 
(7) to 7. Accounts. The guardian must render annual or 

counts ^' ^^^^^ periodic accounts as required by law to the proper 
authority.^ If the testator has remitted this duty, the 
Court or other authority may none the less in its discretion 
insist upon it.^ 
(8) tore- 8. Bepresenting the minor in Court. A minor has no 
thrmLor persona standi in judicio.' He must therefore be repre- 
in Court ; sontcd or assisted by his guardian in any proceedings to 
which he is a party, whether as plaintifE or defendant.^ 
If the guardian is himself a party to the proceedings the 
ward obtaias a curator ad litem.' No doubtful action 
may be brought by a guardian ia the name of the ward 

1 Voet, 27. 9. 13(ad^»i.). 

2 Voet, 27. 9. 14. If the alienation was made for value the period 
is five years ; if donationis titulo, ten years irUer praesentee, twenty 
inter absentes. Cod. 6. 74. 3. 

3 Voet, ibid, {ad fin.) ; Cod. 4. 44. 2 and 8. 

* Cape, Greneral Law Amendment Act, No. 8, 1879, sec. 8 ; O.F. S. 
Ord. No. 6 of 1902, sec. 6. The doctrine of laesio enormis is still in 
force in the Transvaal, Natal, and Brit. Gui. See below, p. 203, n. 3. 

6 Gr. 1. 9. 12 ; Hoola van Nooten, vol. 1, p. 583 ; V. d. K. Th. 120 
and 157; 1 Maasdorp, p. 256. 

* Van Leeuwen, 1. 16. 6. 

' Gr. 1. 7. 8 ; V. d. K. Th. 127 ; V. d. L. 1. 5. 5. In Brit. Gui., by 
Ord. No. 11 of 1893, sec. 6, a minor may bring an action in his own 
name for a sum of money not exceeding one hundred dollars, which may 
be due to him for wages or piece-work, or for work as a servant. If 
the action fails, he is liable for costs [G.]. 

" Gr. 1. 8. 4 ; Voet, 26. 7. 12. » Gr. vhi sup. 



GUARDIANSHIP 59 

without previous sanction of the Court ; ^ otherwise, if 
the ward fails in the suit, the guardian will be liable to 
pay the costs himself.^ In all other matters of impor- 
tance too, says Van der Linden,* the Court should be 
consulted. 

9. Contracting in the name 0/ the minor. Guardians have (9) to con- 
the right to contract on behalf of their wards, but must thTname 
proceed with particular caution, otherwise they wiU be oithe 
liable in damages.* By such contracts the wards acquire ' 
rights and incur liabilities. They may sue and be sued on 

the contracts entered into by their guardians,^ saving, 
however, their right to restitutio in integrum, if they have 
been prejudiced thereby ; which right they must prosecute 
within four years after attaining majority.® It seems 
that a guardian who has contracted nomine pupilli is him- 
self alternatively liable to the other contracting party ; '' 
though if the contract was a proper one, he wUl be entitled 
to an indemnity from the estate. A ward is not bound 
by a donation made by his guardian or by a release of 
a manifest right.* 

10. Authorizing the minor's acts. Finally, it is the duty (lo) to 
of the guardian (and the law gives him power) to 'interpose l^^ °"^^ 
his authority ', that is, to assist and represent the minor minor's 
in all transactions ; and in particular, as has been seen, 

to represent biiTi in Court. ' Authority ' in Roman Law 

^ Or subsequent allowance by the Court ? 

2 Voet, uU sup. =" V. d. L. 1. 5. 3. Of. Gr. 1. 9. 2. 

* Gr. 1. 8. 7 ; 3. 1. 30 ; Voet, 26. 9. 1-2. 

5 Gr. 1. 8. 8 ; V. d. K. Th. 133 ; and see Cod. 5. 39. Senible, if a 
guardian contracting on behalf of his ward, has acted fraudulently, the 
ward is not liable, except : (1) to the extent of his enrichment ; (2) in 
the absence of enrichment only if the guardian is solvent, so that the 
ward can have recourse against the guardian's estate ; and the ward can 
always free himself by ceding his actions against the guardian. Gr. 
3.1.30; Voet, 26. 9.4. 

8 Cod. 2. 52 (53) 7. pr. ; Voet, 44. 3. 6-7. 

' Voet, 26. 9. 3 ; but generally only during the continuance of the 
guardianship. Cf. Cod. 5. 39. 1. . 

8 Gr. 3. 1. 30 and 3. 2. 7 ; unless it be a remuneratory d.onation. 
Gr 3. 2. 3. Guardians may make a novation in the name of their wards, 
if for the wards' benefit. Voet, 46. 2. 8. Guardians may compromise 
on behalf of their wards provided they do not thereby effect an aliena- 
tion of the ward's property. V. d. K. Th. 517. 



60 THE LAW OF PERSONS 

meant a present consent to and approval of what is done 
by the ward, but in the modern law a subsequent ratifica- 
tion will have the same effect as a contemporaneous 
authority.^ Where there are several co-tutors the author- 
ity of one alone is generally sufficient.^ If the guardian 
withholds his authority the Court will in a fit case compel 
it.' A male or female minor upwards of fourteen or twelve 
years of age requires no authority to make a wiU,* nor is 
a marriage contracted without authority of the guardian 
invahd.^ 

Thus far of the powers , rights , and duties of the guardians 
of minors. Since the functions of the curators of lunatics 
and interdicted prodigals are generally similar,® it is 
unnecessary in an elementary treatise to make them 
the subject of special discussion. 

Section 4. Actions arising out of Guabdianship 

The actio Two actions arise out of guardianship, the one by the 

d^cta ward against the guardian {actio tutelae directa), the other 

and con- by the guardian agaiast the ward {actio tutelae contraria). 

The first is available to the ward and his heirs' against 

the guardian and his heirs,® and against each guardian 

in solidum (saving that on satisfaction by one the others 

are released), to render an accotmt of his administration,^ 

to transfer everything which by virtue of the guardianship 

has come under his control ; ■^" and also to make good all 

losses caused to the minor by his bad management. 

The contrary action lies for the guardian and his 

1 Voet, 26. 8. 1. 2 Voet, 26. 8. 7. 

^ Voet, 26. 8. 8, i. e. morihus. It was otherwise jure civili. Dig. 
26. 8. 17. 

* Gr. 1. 8. 2. 5 Qr. 1. 8. 3. 
» Gr. 1. 11. 5 ; Voet, 27. 10. 5 ff. 

' Voet, 27. 3. 4 ; also to the husband of a minor against her former 
guardians and in some cases to creditors. 

* Voet, 27. 3. 5 ; or other successors. 
» Voet, 27. 3. 7. 

1* Voet, 27. 3. 8 ; including claims arising ex contractu. Gr. 3. 1. 38. 
The emancipated ward may sue in respect of such claims without 
cession of the right of action. V. d. K. Dictat. ad loc. ; Dig. 26. 9. 2. 



GUARDIANSHIP 61 

heirs ^ against the ward and his heirs to be indemnified 
for expenses ^ and to recover a reasonable recompense 
for his time and trouble.^ 

In the Civil Law these actions only lay after the termina- 
tion of the guardianship,* but in the modem law they may 
be brought, when necessary, also during its continuance.^ 

The statement made above that each tutor is liable in Extent 
solidum must be understood subject to the law as to the '^^^^' 
benefit of excussion and the benefit of division. Where liability. 
one tutor alone has acted he must be sued before the rest, 
who otherwise can plead the beneficium excussionis. 
Where more than one tutor have acted, any one of the 
acting tutors may be sued, but by pleading the beneficium 
divisionis he can divide his liability with the other tutors 
who were solvent at the earliest time at which the pupil 
could properly have sued. Where different duties of 
administration have been assigned by the testator, or the 
judicial authority, between various tutors, each is, gener- 
ally speaking, liable only for his own particular sphere of 
duty.^ 

In addition to the above actions the Civil Law gave other ac- 
various other remedies or securities to the minor, more ^o^an 
particularly: (1) the action 'rationibus distrahendis ' ; ' Law. 
(2) an action against the magistrate by whom the guardian 
has been appointed ; * (3) the crimen suspecti ^ for the 

1 Voet, 27. 4. 2. ^ yoet, 27. 4. 3-6. 

' V. d. L. 1. 5. 6. In the Civil Law the office of tutor was unpaid. 
Dig. 26. 7. 33. 3. In R.-D. L. a reasonable remuneration was allowed 
except to parents. Gr. 1. 9. 11 ; Voet, 27. 4. 12. The amount was 
usually fixed by local statutes. V. d. K. Th. 156. 

* Dig. 27. 3. 4, pr. and 27. 4. 1. 3. 

' Groen. de leg. abr. ad Dig. 27. 3. 4. 

« Van Leeuwen, 1. 16. 12 ; Voet, 27. 8. 6. ' With regard to losses 
occasioned by omissions, all the guardians are liable in solidum, and 
though they may claim the benefit of division as between themselves, 
are not entitled to the benefit of excussion. 1 Maasdorp, p. 259 ; Nie- 
kerk v. Niekerk (1830) 1 Menz. 452. 

' Dig. 27. 3.1. 9; 27.3.2. 

^ Dig. 27. 8. 1. This action was given by a S. C. of the time of Trajan. 
Cod. 5. 75. 5. 

" Inst. lib. l,tit. 26 : Sciendum est suspecti crimen e lege duodecim 
tabularum descendere. 



62 THE LAW OF PERSONS 

removal of guardians on the ground of misconduct actual 
or anticipated ; (4) a tacit hypothec or legal mortgage 
upon the whole of the guardian's estate.^ 

The action rationibus distrahendis, ' for separation of 
accounts ', which was as old as the Twelve Tables,^ applied 
only to those who during their administration had carried 
ofE something from the ward's estate.^ It lay for twice 
the value of the thing taken. Voet seems to treat this 
remedy as still existing, but Groenewegen says that the 
penalty of double was disused.* 

In the Civil Law a subsidiary action lay in certain 
cases against the magistrates, when the ward had failed 
to obtain satisfaction from the guardian appointed by 
them.® Whether this action subsisted in the Roman- 
Dutch Law was much debated. Voet and others ® allowed 
it in case of fraud or gross negligence. But the Orphan 
Chamber, at aU events, was answerable for the moneys of 
minors committed to its keeping.' 
Removal With regard to the removal of guardians the Court, as 
diaM^'^ ^^^ upper guardian, has a wide judicial discretion,^ exer- 
cised usually OR the complaint of a co-guardian or near 
relatives of the ward.^ Incapacity, dishonesty, or insol- 
vency are the most frequent grotinds of removal. In 
South Africa the final order for sequestration or assign- 
ment of the guardian's estate ipso facto determines the 
office of tutor or curator.^" 
The Lastly, wards have a legal or tacit hypothec over the 

r^'t'h property of their tutors or curators in respect of debts 



pothec. 



1 Cod. 5. 37. 20 (Constantine, a.d. 314). 

2 Dig. 26. 7. 55. 1. 
' Dig. 27. 3. 2. 

4 Groen. de leg. abr. ad Dig. 27. 3. 2. 2, and Cod. 9. 47 (rubric). 

5 Inst. 1. 24. 2. 

" Van Leeuwen, 1. 16. 4, and Decker's note ; Cens. For. 1. 1. 17. 4 ; 
Voet, 27. 8. 5 ; Groen. de leg. abr. ad Inst. 1. 24. 4 ; Vinnius, ibid. 

' Decker ad Van Leeuwen, 1. 16. 4. 

« Voet, 26. 10. 2. 

» Gr. 1. 10. 4. 

1" Administration of Estates Act, 1913, sec. 84 ; and see sees. 32 
and 73. But semhle, it was not so by the common law. See De VilUers 
V. Stuckeris (1829) 1 Menz. 377. 



GUARDIANSHIP 63 

due to them arising out of the administration and to the 
extent of loss attributable to the guardian's misconduct.^ 
By the Roman-Dutch Law this extends to the property of 
all tutors (natural, testamentary, or appointed) and cura- 
tors, as well as of protutors,^ i. e. persons who have acted 
as tutors without appointment or confirmation, and of 
agents and others who have concerned themselves in the 
administration of the minor's estate. Further, the liability 
attaches to a step-father who has married a mother-tutor 
before she has wound up the tutorship and settled her 
accounts ; also (senile) to the wife, married in community, 
whose husband has, during the marriage, undertaken the 
duties of guardianship.^ By statute this. legal hypothec 
has been abolished in the Transvaal and materially re- 
stricted at the Cape.* 

Section 5. How Gitardianship ends 
Guardianship is determined by the following events : How 
viz. (1) the death of the minor ; (2) the death of the |^^ l^_ 
guardian,^ in which case a surrogated tutor (if any) or 
tutor dative replaces him ; (3) majority, unless the Court 
decides that the ward is to remain under guardianship 
for some time longer ; * (4) marriage, imless the Court 
for weighty reasons orders that the guardianship is to con- 
tinue either absolutely or with respect to the immovable 
property of the ward ; ' (5) venia aetatis ; ^ (6) arrival 
of time or cessation of purpose, when the guardian- 
ship was created for a limited time or purpose ; ® 
(7) removal ^^ or release of the guardian by the Court ; 

1 Gr. 2. 48. 16, and Sohorer's note ; Voet, 20. 2. 11 ft. ; 27. 3. 1 ; 
V. d. L. 1. 12. 2. 

2 Voet, 20. 2. 12. » Voet, 20. 2. 11. 

* 1 Maasdorp, p. 257 ; 2 Maasdorp, p. 247 ; Cape Act 5 of 1861, sec. 8; 
Transvaal Procl. No. 28 of 1902, sec. 130. = Gr. 1. 10. 1. 

" Gr. vbi swp. The age of majority was sometimes anticipated by 
order of Court, but this practice was replaced by grant of venia aetatis. 
V. d. K. Th. 110. ' Gr- 1- 10. 2. 

8 Gr. 1. 10. 3. But this does not carry the right to ahenate im- 
movables except by leave of the Court. Supra, p. 38. 

» Gr. 1. 10. 6. 
" w Gr 1. 10. 4 ; Voet, 26. 10. 1^ ; V. d. K. Th. 162. 



64 THE LAW OF PERSONS 

(8) absence of the ward ^ f or . a prolonged period, such as 
furnishes a presumption of his death, in which case his 
property is divided amongst his testamentary or intestate 
heirs, security being given for its return in the event of 
the ward's reappearance ; (9) (in South Africa) the 
insolvency of the guardian ^ and, so far as concerns the 
property, of the ward.* 



CHAPTER V 

MARRIAGE 

The union of man and wife in marriage produces 
important consequences in the Law of Persons. In this 
chapter we shall consider: (1) the contract to marry; 
(2) the legal requisites of marriage ; (3) the consequences 
of marriage ; (4) antenuptial contracts ; (5) the dissolution 
of marriage ; (6) some miscellaneous matters relating to 
marriage. 

Section 1. The Contract to Marry 

The pro- Marriage is commonly preceded by espousals,* which 
miseto constitute a binding contract between the parties.^ No 
form is prescribed for the contract.* Any persons com- 
petent to intermarry may vaMdly engage themselves.' 
Tlds excludes boys and girls below fom-teen and twelve 
years of age respectively.* By the Dutch Law young 
persons who have passed this Hmit but not reached the 
age of twenty-five® (if males), of twenty (if females), cannot 
contract a vahd engagement without the consent of father 

1 Gr. 1. 10. 5, and Schorer's note ; V. d. K. Th. 163. 
^ Supra, p. 62. In Brit. Gui. guardianship is not ipso jure deter- 
mined by the guardian's insolvency [G.]. 

3 In re Jones (1886) 6 E. D. C. 34 ; 1 Maasdorp, p. 264. 

* Van Leeuwen, lib. 4, cap. 25 ; V. d. L. 1. 3. 2. 
5 Voet, 23. 1. 12. 

* Oens. For. 1. 1.11.3; Voet, 23. 1. 1. In Ceylon writing is required. 
Ord. No. 19 of 1907, sec. 21. ' V. d. L., ubi sup. 

8 Cens. For. 1. 1. 11. 12 ; V. d. K. Th. 52 ; but see Voet, 23. 1. 2. 
' The age is now twenty-one for both sexes. Duncan r. B. M: 
Mossel Bay (1905) 22 S. C. 587. Supra, p. 37. 



marry. 



MARRIAGE 65 

and mother, or of the survivor of them, and, failing these, 
of the majority of the friends and relatives,^ which con- 
sent, however, may be given ex post facto at any time before 
marriage.^ FaiHng such consent the engagement is invalid.* 
With it, the engagement is valid, subject however in this 
case, as in other contracts of minors, to restitutio in inte- 
grum on the ground of lesion ; * from which it follows that 
the engagements of minors are in no case finally binding 
unless and until ratified after full age.^ By the common 
law of Holland the consent of tutors was not required ; ® 
but the want of consent of tutors, no less than of parents, 
was a sufficient ground for the repudiation of the contract 
by either party.' 

An engagement lawfully contracted with the necessary 
consents cannot be broken off without just cause.^ If 
a person contracts more than one engagement ® we must 
distinguish whether the first engagement is clandestine or 
lawful. If the second engagement alone is lawful, it takes 
precedence of a previous clandestine engagement, which, 
as we have seen, is ineffectual to bind the parties. If the 
first engagement is lawful, a subsequent engagement is 
null and void." Under the Roman-Dutch Law the Courts 
used to decree specific performance of the marriage con- 
tract, and even declare a reluctant party married in 

1 Perpetual Edict of Charles V, 4 Oct. 1540, Art. 17 (1 G. P. B, 
319) ; Oreefy. Verreaux (1829) 1 Menz. 151. 

2 Hoola Van Nooten, vol. i, pp. 309 and 321 ; V. d. K. Th. 50. 

3 Voet, 23. 1. 20. 

* Voet, 23. 1. 17 ; V. d. K. Th. 61. 
« Cens. For. 1. 1. 11. 13. 

" Hoola van Nooten, vol. i, p. 304. 

' Hoola van Nooten, op. cit. p. 328 ; Loenius, Decis. 4 and 54 ; 
V. d. K. Th. 53. Bynkershoek {Qitaest. Jur. Priv., lib. II, cap. iii) argues 
that the engagements of minors who have tutors are governed by the 
same rules as any other contracts of minors ; viz. (1) if made without 
consent of tutors they are absolutely void (but see above, p. 39) ; 
(2) If made with consent, the minor may nevertheless in a fit case obtain 
relief. This seems soxmd. 

8 Voet, 23. 1. 12 ; Hoola van Nooten, vbi sup. ; V. d. K. Th. 60. 

* Van Leeuwen, 1. 14. 11. 

" Van Leeuwen, ubi sup. But the other party to the second engage- 
ment, if innocent, may maintain an action for damages. V. d. K. 
Th. 68. 

1713 F 



66 THE LAW OF PERSONS 

absence.^ This practice is disused in the modem law,^ 
but an action lies for damages for breach of the contract 
to marry. 

Section 2. The Legal Requisites or Marriage 
Legal con- Assuming the consent of the parties as a necessary 
a vaM °^ condition of marriage, as of other contracts, we may lay 
marriage : (jown the essentials of a valid marriage as being : 

A. Capacity to marry and to intermarry. 

B. Consent of parents. 

C. Due observance of the necessary forms and cere- 
monies. 

We shall deal with these in order. 
A. Capa- A. Capacity to marry and to intermarry. The following 
parties. Cannot contract a vahd marriage : ^ viz. those who are 
(1) already married ; * (2) under the age of puberty ; 
(3) impotent ; (4) insane ; to whom the Roman-Dutch 
Law added (5) widows, so long as the question of their 
pregnancy remained undetermined.^ 

The following persons are precluded from intermarriage : 
viz. (a) persons within the prohibited degrees of relation- 
ship ; ® (b) persons who have previously committed 
adultery together.'' 

1 Cens. For. 1. 1. 11. 26 and 1. 1. 14. 9 ; Voet, loo. oit. ; V. d. K. 
Th. 57. This was called ' met de handschoen trouwen '. Hoola van 
Nooten, vol. i, p. 332 ; (Cape) Bichter v. Wagenaar (1829) 1 Menz. 262; 
(Ceylon) Dormeux v. Kriekenheek (1821) Ramanathan, 1820-33, p. 23. 

" (Cape) Marriage Order-in-Council of 7 Sept. 1838, sec. 19, in force in 
the Colony from Feb. 1, 1839. The same enactment applied to British 
Guiana, but has now been repealed by Ord. No. 25 of 1901. See also 
Ord. No. 36 of 1903. In Ceylon the action to compel marriage was 
abolished by Ord. No. 6 of 1847, sec. 30 (re-enacted in sec. 21 of 
Ord. No. 19 of 1907). 

' For Brit. Gui. see Ord. No. 25 of 1901, sec. 28. 

^ But, Van der Keessel says {Th. 64-5), if a second marriage has 
been contracted in good faith, the first spouse being thought to be dead, 
the children of the supposed second marriage wiU be deemed to be 
legitimate. ^ Gr. 1. 6. 3 ; V. d. K. Th. 66-8 ; V. d. L. 1. 3. 6. 

s Gr. 1. 5. 5 ff. ; Van Leeuwen, 1. 14. 12 ff. ; Voet, 23. 2. 29 ff. 

' Dig. 34. 9. 13 ; Nov. 134, cap. 12. (a. d. 556) ; Sohorer ad Gr. 
1. 5. 18 ; Voet, 23. 2. 27 ; Eoht-reglement van de Staten-Generaal, 
18 March, 1656, art. 83 (2 G.P.B. 2444) ; Placaet van de Staten van 
HoRandt, July 18, 1674 (3 G. P. B. 507) ; V. d. K. Th. 70 ; V. d. L. 
1. 3. 6 ; Rechtsg. Obs., pt. 1, no. 11 ; Bynkershoek, Quaest Jur. Priv. 
lib. II, cap. X. Groenewegen, adopting a benignant interpretation 



MARRIAGE 67 

To these two grounds of disability the commentators 
add others which at the present day are either obsolete or 
of diminished importance. For instance, the Civil Law ^ 
prohibited marriage between a female ward and her tutor 
or curator, or his son ; and this prohibition, though con- 
sidered to be obsolete by Van Leeuwen,^ Groenewegen,^ 
Voet,^ and others, was accepted as existing law by Bynkers- 
hoek,* Van der Keessel,^ and Van der Linden.^ In the 
Cape Province the marriage of a guardian with his female 
ward requires the sanction of the Court.* By the Roman 
and Roman-Dutch Law a ravisher might not marry the 
woman whomhe hadravished.^ TheolddisquaHficationson 
the ground of differences of rehgion* are doubtless obsolete. 

of Cod. 9. 9. 26 (27), thought such marriages permitted (De leg. abr. 
adloc). See also ZypBuevs, Notitia Juris Belgici, f. 208. The matter 
is concluded for the modem law by the Placaats above cited, unless they 
are abrogated by disuse. For Cape Law see Daniel y. Daniel (1884) 
2 S. C. 231. In Ceylon the rule has been declared to have no place. 
Robot V. de Silva [1909] A. C. 376. 

"• Dig. 23. 2. 62 and 64 ; Cod. lib. 5, tit. 6 (de interdioto matrimonio 
inter pupillam. et tutorem seu curatorem liberosque eorum). But 
a tutor might give his daughter in marriage to his ward. Dig. 23. 2. 64. 2. 

^ Van Leeuwen, 1. 14. 13 and Cens. For. 1. 1. 13. 25 ; Groen. de leg. 
abr. ad Cod. vbi mup. ; Voet, 23. 2. 25. 

* Bynkershoek, Qwiest Jur. Priv. lib. II, cap. iii, p. 219 ; V. d. K. 
Th. 74; V. d. L. 1. 3. 6. 

* 1 Maasdorp, p. 19. In Brit. Gui. if the mother is alive and consents 
it is unnecessary to apply to the Court for leave [G.]. 

= Cod. 9. 13. 1. 2 ; Voet, 23. 2. 26 ; Matthaeus, De crimin. ad Dig. 48, 
tit. 4, no. 16 ; Eoht-reglement van de Staten-Generaal, March 18, 
1656, art. 85 (2 G. P. B. 2444) ; Placaat van de Staaten van Holland, 
Feb. 25, 1751 (8 G. P. B. 535). Groenewegen, whose book first appeared 
in 1649, i. e. before the Placaats, says {ad Cod. 9. 13. 1) : Jure Canonico 
raptae raptori nubere licet, et hoc jure utimur. See also Zypaeus, 
Notitia Juris Belgici, pp. 207-8. This opinion, however, cannot stand 
■ against the express language of the Placaat of 1751, which saves the 
punishments and penalties of ' the written law ' in the matter of abductio 
violenta (geweldaadige vervoeringen). See V. d. K. Th. 71. 

Van der Linden mentions further the case of persons of any age 
who have eloped together. ' There was a strong prohibition,' he says, 
'in Holland, against marriages between persons who had eloped ' (Placaat 
of Feb. 25, 1751, tibi sup.),' which was afterwards considerably relaxed 
whenever the subsequent consent of parents was obtained.' Reso- 
lutie van de Staaten van HoUand, June 26, 1783 (9 G. P. B. 375). 
The case of elopement is in fact covered by the language of the Placaat 
of 1751. But in this case marriage is not prohibited, only penalized, 
V. d. K. Th. 72. 

« Voet, 23. 2. 26; Hoola van Nooten, vol. i, p. 393; V. d. K. Th. 
73; V. d. L. 1. 3. 6. 

r2 



68 THE LAW OF PERSONS 

Marriage The law of prohibited degrees was defined for Holland 
"°.*P!f- by the Political Ordinance of April 1, 1580,^ which forbids 

mitted J '■ 11JX9 

within the marriage between: (1) ascendants and descendants,' 

Se^es!^*^ whether related by legitimate or illegitimate birth ;3 
(2) collaterals of whom either is related to the common 
ancestor in the first degree of descent, e.g. brother and 
sister, uncle and niece, uncle and grand-niece, nephew 
and aunt.* In the latter class no distinction is made be- 
tween the whole and the half blood, and in both classes 
the prohibition extends to relations by marriage as well 
as to relations by blood and within the same degrees ; ^ 
that is to say, since a man may not marry his sister or 
sister's daughter, neither may he marry his sister-in-law 
or sister-in-law's daughter ; and so with all the other 
prohibited degrees of relationship. It must be observed, 
however, that though relationship by marriage is a dis- 
qualification within the prohibited degrees, this rule has 
no appMcation when more than one marriage intervenes 

1 G.P.B. 330. 

2 Pol. Ord., Art. 5 ; Gr. 1. 5. 6 ; Voet, 23. 2. 30. 

3 Groen. de leg. ahr. ad Dig. 38. 10. 8 ; V. d. K. Dictat. ad Gr. 1. 5. 6. 
* Pol. Ord., Arts. 6-7 ; Gr. 1. 5. 7-8 ; Voet, 23. 2. 31-2. 

^ This is expressly enacted by Pol. Ord., Art. 8, by which ' it is for- 
bidden and interdicted for a man to marry blood relations of his deceased 
wife or for a woman to marry blood relations of her deceased husband '. 
But inasmuch as the Ordinance goes on to specify ' namely ' the cases 
enumerated in Arts. 8 to 11 (Vide Gr. 1. 5. 10-12), it was doubted 
whether the prohibition of the Ord. extended in regard to collateral 
affinity beyond the cases specifically stated. With regard to the ascend- 
ing and descending lines of affinity no such doubt arose, a man being 
by universal consent prohibited from marrying his stepmother or 
mother-in-law, step-daughter or daughter-in-law; just as a woman 
from marrying her step-father or father-in-law, step-son or son-in-law. 
(Pol. Ord., Arts. 5 and 8 ; Gr. 1. 5. 10 ; Voet, 23. 2. 30). Nor were 
any exceptions admitted in the second degree of afSnity. In the third 
degree doubts arose, which were variously resolved. Thus the question 
of marriage with a deceased wife's brother's or sister's daughter re- 
mained open until definitely disallowed by the Publicatie van de 
Staten van Hollandt of May 21, 1664 (3 G.P.B. 606) ; Van Leeuwen, 
1. 14. 13. Van Leeuwen gave an opinion in favour of marriage with 
a deceased wife's maternal aunt (Cens. For. 1. 1. 13.21). Van der 
Linden, however (1. 3. 6), says that the same prohibitions apply to 
affinity as to blood relationsMp and, since dispensations are no longer 
accorded, the modem law may be taken to be settled in this sense, 
subject to statutory modifications, where they exist. See on the whole 
subject, Loenius, Decis., Gas. 7, pp. 39-62; Eechtsg. Obs., pt. 4, no. 3 ; 
Hoola van Nooten, vol. i, pp. 383 S. 



MARRIAGE 69 

between the intending spouses.^ Thus by the Dutch law 
a man might not marry his deceased wife's sister,^ but 
there was no reason why he should not marry his deceased 
wife's brother's widow.* In the colonies the matter of 
prohibited degrees has in part or in whole been regulated 
by statute.* 

^ In other words, my wife's affines are not my affines so as to bring 
them within the prohibited degrees (Van Leeuwen, 1. 14. 13 and 
Gens. For. 1. 1. 13. 23), at all events in the collateral line. Voet, 
23. 2. 33. 

2 Pol. Ord., Art. 10. 

3 Gens. For. 1. 1. 13. 24 ; Voet, 23. 2. 33 ; Rechtsg. Obs. uU sup., 
p. 20 ; Hoola van Nooten, vol. i, p. 387. 

^ For the Cape see Act No. 40 of 1892, which enacts (sec. 2) that : 
' it shall be lawful for any widower to marry the sister of his deceased 
wife, provided such sister be not the widow of a deceased brother of such 
widower, or to marry any female related to him in any more remote 
degree of affinity than the sister of his deceased wife save and except 
any ancestor of or descendant from such deceased wife '. By sec. 4 
nothing in the Act contained ' shall be deemed to legalise or render 
valid the marriage of a man with the sister of a wife from whom he has 
been divorced '. Sir A. P. S. Maasdorp has some remarks on this Act 
(1 Maasdorp, p. 17), which are stated by a writer in 8. A. L. J., vol. xxix, 
p. 130, to rest upon a misapprehension. 

In the Transvaal Province by Law No. 3 of 1871, sec. 4, 'Under the 
prohibited degrees of blood relationship are included : (a) all persons 
in the ascending and descending line ad infinitum, and in the collateral 
line to the third degree inclusive, consequently uncle and niece, aunt 
and nephew, whether by blood or marriage; (b), first cousins when 
both the parents of the one are related to both the parents of the other, 
as own brothers and sisters. The law is silent as to the prohibited 
degrees of affinity, which therefore depend upon the common law. 
It follows that marriage with a deceased wife's sister is not allowed ; 
and a man who has carnal intercourse with his wife's sister is guilty 
of incest. B. v. Paterson [1907] T. S. 619. 

In the Orange Free State, by Ord. No. 31 of 1903, sec. 1, 'Marriage 
is prohibited between all persons related to one another in the following 
degrees of consanguinity or affinity : (1) In the ascending and descend- 
ing lines between persons related to one another either by legitimate 
or illegitimate birth, or by marriage. (2) In the collateral degrees, 
(a) Between brother and sister by birth legitimate or illegitimate ; 
(6) (As amended by Ord. No. 27 of 1906) between uncle or great-uncle 
and niece or great-niece by birth legitimate or illegitimate; (c) Between 
aunt or great-aimt and nephew or great-nephew by birth legitimate or 
illegitimate. (3) (a) Between cousins whose fathers are brothers and 
whose mothers at the same time are sisters by birth legitimate or 
illegitimate ; (b) Between cousins of whom the father of the one is 
brother of the mother of the other and at the same time the mother 
of the one is sister of the father of the other by birth legitimate or 
illegitimate. 

Sec. 2. No marriage shall be deemed unlawful by reason only that 
the persons contracting such marriage are related to one another in any 



70 THE LAW OF PERSONS 

B. Con- B. Consent of parents. In the oldest Germanic law the 
ptrente. consent not alone of parents but also of other near rela- 
tives, was a necessary, or at all events usual, preliminary of 
marriage. ' Intersunt parentes et propinqui,' says Taci- 
tus, ' ac munera probant.' ^ In Holland a case is cited 
as late as the year 1422 in which parents had incurred a 
penalty for having given their minor daughter in marriage 
without the consent of relatives and of the authorities of 
the town.^ In the sixteenth centtiry the matter was 
regulated by two statutory enactments : viz. the Per- 
petual Edict of Charles V of October 4, 1540, and the 
Political Ordinance of the States of Holland and West 
Priesland, of April 1, 1580. 

The Perpetual Edict (Art. 17) runs as foUows : ^ 

The pro- ' ^j^^ whereas, daily, many inconveniences are caused 

^"^j.° in our realm in consequence of secret marriages, which 

petual are contracted between young persons without the advice 

Edict of counsel and consent of friends and relatives of both sides, 

1540 ^"^ ' ^® observing that according to the precepts of the written 

Art. 17. law such marriages are not in accordance with honour 

and due obedience, and generally come to a bitter end, 

WiU, Ordain and Decree that in case any one shall take 

upon himseK to sohcit and induce any young girl not 

exceeding the age of twenty years by promise or otherwise, 

to contract marriage with him, or shall in fact contract 

marriage with her without the consent of the father or 

mother of the said girl, or of the majority of the friends 

and relatives, in case she had no father or mother, or of 

the judicial authorities of the place, such man shall at 

other degree of consanguinity or affinity than those in section one 
mentioned. 

In Natal the prohibited degrees are left to the common law, except 
that Act No. 45, 1898, legalizes the marriage of a man with his deceased 
wife's sister. 

For Ceylon see Ord. No. 19 of 1907, sec. 17. It has been held that 
by the law of the Colony there is no objection to a man marrying his 
wife's sister {Valliammai v. Annammai (1900), 4 N. L. R. 8). But the 
Ordinance is silent on the subject and the Court does not appear to 
have investigated the common law. 

In British Guiana Ord. No. 25 of 1901 (see. 28) defines the prohibited 
degrees and permits marriage with a deceased wife's sister. 

^ Tacitus, Agricola, cap. 18. 

^ Hoola van Nooten, vol. i, p. 300. 

M G. P. B. 319 ; 1 Maasdorp, p. 287. 



MARRIAGE 



71 



no time be entitled to take or receive any douarie or other 
benefit (whether by way of ante-nuptial contract, by the 
custom of the country, by testament, gift, transfer or 
otherwise in what manner soever) out of the goods 
which the said girl may leave behind, even though he 
may, after the marriage has been completed, have obtained 
the consent of the father and mother, of the aforesaid 
friends and relatives, or of the Court ; of which circum- 
stance we wlQ that no regard should be had in this matter. 
In hke manner if any girl or woman take upon herself to 
contract marriage with a young man not exceeding the 
age of twenty-five years, without consent of father or 
mother, or of the nearest friends and relatives, or of the 
judicial authorities of the place, such woman shall never 
be entitled to take or acquire any douarie or other benefit 
out of the goods which such man may leave behind 
(whether by way of ante-nuptial contract, by the custom 
of the country, by testament, gift, transfer or cession, 
in what manner soever), even though she may, after the 
marriage has been consummated, have obtained the consent 
of father or mother, of the aforesaid friends and relatives, 
or of the judicial authorities ; of which circumstance we 
will that no regard should be had. Further, we forbid all 
our subjects to be present, to consent or agree to such 
marriages, contracted without the consent of the judicial 
authorities, or to receive, entertain, or lodge in their 
houses persons so married, under penalty of one hundred 
gold CaroH or other severe punishment in the discretion 
of the Court. We forbid also all Notaries to receive any 
ante-nuptial contract or other promise to effect such 
marriage under pain of deprivation of office and, moreover, 
of being punished at discretion. Commanding aU our 
ofiicers and fiscals to take good care to have this ordinance 
observed and maintained, and to punish the contraveners 
of the same without favour or dissimulation.' 

The above enactment, it will be noticed, penahzes 
marriages contracted without the necessary consents, 
without, however, annuUing them. This further step 
was taken by the PoHtical Ordinance of April 1, 1580, Tte Pro- 

1 1 11 1 n J. 1 visions of 

which by Art. 3 ^ provides that banns shall not be the PoUti- 

granted or proclaimed if those that apply for the same l^^^^f^""' 

are beneath the proper age, viz. twenty-five for young AprU i, 

xr «o n ,1 1580, Arts. 

1 1 G. p. B. 331 ; Gr. 1. 5. 14-15 ; Voet, 23. 2. 11. 3 & 13. 



72 THE LAW OF PERSONS 

men, and twenty for young women, imless they produce 
to the magistrate or minister of rehgion the consent of 
their parents or the survivor of them (if they have any) ; 
and by Art. 13 declares ' null and void and of no effect 
marriages not contracted and celebrated ' as required by 
the Ordinance, and adds an express reservation of the 
provisions of the Perpetual Edict relating to the marriage 
of minors and the penalties therein contained.^ With 
The com- regard to the interpretation of these two enactments and 
''fi'^t f their combined effect very divergent views have been 
of these entertained. As regards minors who have parents or 
me^ta : parent yet living the law seems plain. Such young per- 
(a) As re- SOUS can neither engage themselves ^ nor contract a vahd 
fentof °° marriage,^ without the consent of parents or parent.* 
parents ; If both parents are Hving the consent of both is required, 
but in case of difference of opinion between them the will 
of the father, as the head of the family, prevails over 
that of the mother.* If the father is dead the mother's 
consent is necessary, and sufificient,^ even though she has 
contracted a second marriage.'' Consent may be express 
or tacit, the latter when a parent knows of the intended 
marriage and does not forbid it. Such a case might arise 
if, through fraud or mistake, the pubhcation of banns had 
taken place without previous proof of parental consent 
as required by the Pohtical Ordinance, and the parents 
nevertheless acquiesced in the banns when they came to 
know of them.^ Indeed, in the absence of fraud on the 
part of one or both of the spouses, pubhcation of banns 
is deemed to be notice to the parents,* and a marriage 
thereafter concluded is valid, even though, through care- 
lessness on the part of the marriage-officer or other person 

1 1 G. P. B. 334. 

" Voet, 23. 1. 20 ; V. d. L. 1. 3. 2. 

^ Van Leeuwen, 1. 14. 6 ; Willenburg v. Willenburg (2) (1908) 
25 S. C. at p. 910 ; 3 Buch. A. C. 409. 

* Grandparents are not included. V. d. K. Th. 77. 

° Voet, 23. 2. 13. 'Ibid. ' Voet, 23. 2. 14. » Voet, 23. 2. 18. 

» Voet, loc. cit. {ad fin.); Johnson v. Mclntyre (1893) 10 S. C. 318. 
But there is no presumption of notice in case of marriage by special 
licence under Cape Act No. 9 of 1882. 



MARRIAGE 73 

responsible, the parents may in fact not have consented 
to the marriage or even have known of it. In any event, 
ratification by the parents or parent after marriage, so far 
as concerns the validity of the marriage, and the legitimacy 
of the children, has the same effect as a previous consent ; 
but no ratification after marriage can reheve from the 
penalties imposed by the Perpetual Edict, this being 
excluded by the express terms of the Edict itself.^ 

If parents frivolously and unreasonably withhold their 
consent, it would seem just that the Court should have 
power to override their veto. Such is the opinion of 
Voet,^ which Van der Keessel accepts.* But only very 
pecuUar circumstances would justify overriding the 
parental authority.* An insane parent, so far as concerns 
consent, is treated as non-existent, and the same consent, 
if any, is required and sufficient as would be sufficient if 
he or she were already dead.* 

A minor who has married with consent, and who becomes 

widowed before reaching the usual limit of full age, may 

remarry without consent. Such at least was the law in the 

province of Holland, in regard to females and males ahke.® 

Thus far we have spoken of the consent of parents Or other 

relatives. 

1 Voet, 23. 2. 19 ; V. d. K. Th. 75. In the absence of consent or 
ratification the marriage will be declared void by the Court on the 
application of an aggrieved parent 'si rigido jure uti velit'. Voet, 
23.2.11; Van Leeuwen, 1. 14. B ; Johnson v. Mclntyre, ubi sup.; 
Willenburg v. Willenburg (1909) 3 Buoh. A. 0. at p. 423. It follows 
that marriages contracted without consent of parents are voidable, not 
void. Further, they are voidable by the parent only, not by the parties 
or either of them, i. e. not on the ground of minority merely apart 
from fraud {S. A. L. J., vol. xxviii, p. 480) ; and by the parent (semble) 
only during the minority of the married child. Ibid. 

2 Voet, 23. 2. 22 ; Schorer ad Gr. 1. 5. 16. In Brit. Gui. the minor 
may appeal to the Court against the refusal of parents to consent. 
Ord. No. 25 of 1901, sec. 31 ; Be petition of Victorina Chaises (1912) 
Brit. Qui. Off. Gaz., vol. xxxv, p. 1445. 

3 V. d. K. Th. 76. * Voet, uhi sup. 

5 V. d. K. Th. 82. Cod. 5. 4. 25 is not followed in R.-D. L. At 
the Cape, any person desirous of marriage to whose marriage con- 
sent is necessary, but cannot be given or is withheld, may apply by 
petition to the Chief Justice. Marr. 0. in C. 1838, sec. 17. 

« Cens. For. 1. 1. 13. 11 ; Voet, 23. 2. 17. The Echt-Reglement of 
March 18, 1656 (2 G. P. B. 2439) contains an express provision to this 
effect for the Generaliteyts Landen. 



74 THE LAW OF PERSONS 

or of a surviving parent. But what if both parents 
are dead? The Political Ordinance (Art. 3) does not 
require the consent of relatives.'^ Inasmuch, however, 
as Art. 17 saves the operation of the penal clauses of the 
Perpetual Edict, it has been thought that a marriage of 
minors whose parents are both dead, if contracted without 
the consent of friends and relations, or, if these disagree 
amongst themselves or unreasonably withhold their 
consent, of the Court, though not void, is nevertheless 
penahzed. This is the view of Grotius,^ whose opinion 
seems to have prevailed. Voet* and Bynkershoek,* 
however, agree in thinking that the penalty of the Edict 
is only preserved by Art. 13 of the Pohtical Ordinance so 
far as the enacting clause of the Edict is also retained. 
Since, therefore, the Pohtical Ordinance requires no con- 
sent of relatives, neither can it be supposed to retain the 
penalty attached by the Edict to marriages contracted 
without such consent. Grotius treats the consent of the 
nearest relatives as necessary, if the penalty is to be 
avoided, though he expressly says that the marriage of 
minors is not void by reason of its being prohibited by 
their guardians or relatives.^ 
(b)Aare- The argument founded upon the language of the Per- 
sent of petual Edict clearly fails in regard of the consent of tutors, 
tutors; for the Edict does not penalize marriages contracted 
without such consent. In view of this fact, it seems 
impossible to say that the common law of Holland made 
the consent of tutors a necessary condition of a vahd 
marriage of a minor whose parents were dead,* nor, apart 
from general or local legislation, can the penalty of the 
Edict be extended to a case to which it does not in terms 
apply.' It is plain, however, from Van der Keessel ^ that 

1 Voet, 23. 2. 16. ^ Qj. i §_ 3_ s Voet, ubi sup. 

* B3aikerslioek, Quaest. Jur. Priv., lib. II, cap. iii. 

* Gr. vbi sup. 

* Gr. uhi sup. and Schorer ad loo. ; Van Leeuwen, 1. 14. 9 ; Voet, 
23. 2. 16 ; V. d. L. 1. 3. 6 ; Hoola van Nooten, vol. i, p. 307. 

' Van Leeuwen {ubi sup.) applies it, but with hesitation. In any 
event consent of guardians will be easily inferred. Ibid. 
8 V. d. K. Th. 125. 



MARRIAGE 75 

the consent of guardians or relatives, and often of both, 
was very generally required by the local statutes, if not 
for the vaUdity of the marriage, at all events for the 
avoidance of the penalty.^ On the other hand the law 
of Zeeland, which penalized and also aimuUed marriages 
contracted without such consents, seems to be mentioned 
as exceptional.^ 

With regard, more particularly, to the statutory Thestatu- 
penalty, it must be noticed that it attaches only to the aity does 
person of full age of either sex who inveigles a minor of not attach 
the other sex into marriage. Such person is not allowed to spouse 
take any benefit from the property of the minor spouse, ^^° "^ * 
whether present or future, whether by gift, legacy, 
inheritance, or in what way soever. One effect of this is 
that the major spouse takes no advantage from the mar- 
riage by way of commvmity of property, nor, where this 
exists, by ante-nuptial contract.^ But the minor spouse 
is not penahzed,* so that where both spouses are minors 
the penalty is not incurred. 

It remains to speak of the requirement of consent of Consent 

.' J J! 11 °^ parents 

parents when the parties to the marriage are of lull age. when the 
This case is provided for by the Pohtical Ordinance ^^""^ 
(Art. 3) in the following terms : ^ full age, 

' But if any young man or young woman being above 
the age of twenty-five and twenty respectively and having 
parents, apphes for the aforesaid Sunday banns without 

1 This is {semble) the law in Cape Colony. Mostert v. The Master 
(1878) Buch. 83. Mr. Justice Kotz6, however, says (Van Leeuwen, 
vol. i, p. 107, note) : ' At the Cape of Good Hope the consent of guardians 
to the minor's marriage is necessary. Marr. O. in C. 1839,secs. 10 and 17.' 
In Natal the consent of guardians has been held to be necessary to the 
valid marriage of a minor. In re McDuling and Brown (1885) 6 N. L. B. 
88. In the Transvaal, by Law No. 3 of 1871, sec. 8, it is not lawful to 
solemnize the marriage of a minor, if he or she cannot produce the 
consent of father or guardian. In Ceylon, the consent of guardians is 
required. Ord. No. 19 of 1907, sec. 22. For Brit. Gui. see Ord. 
No. 25 of 1901, sec. 30. ^ V. d. K. Th. 126. 

' ' The husband, whether he knew at the time or did not know the 
lady to be a minor, can receive no benefit from such a marriage and 
can have no control over her property.' MosteH v. The Master (1878) 
Buch. at p. 85, per Sir Henry de Villiers C.J., 

* Voet,23.2.20. M G. P. B. 331. 



76 



THE LAW OF PERSONS 



is easily 
presumed, 

and may 
not be 
withheld 
unreason- 
ably. 



C. The 
formal 
require- 
ments of 
marriage. 



producing evidence of their parents' consent, the aforesaid 
Magistrates or Ministers of Religion shall, before the 
proclamation of such banns, be bound to summon the 
parents of the appUcant before them, and in case the parents 
refuse or fail to appear within fourteen days after the 
service of the summons upon them, such refusal shall be 
held for consent, and the said Magistrate or Ministers of 
Religion may then forthwith proceed to the aforesaid 
proclamations and banns ; but if the parents appear and 
allege any reasons why they will not consent to the desired 
marriage, and cannot be persuaded thereto by the Magis- 
trate or Minister of Rehgion, the aforesaid Magistrate or 
Ministers may not marry such young people or join them 
in wedlock, before they are directed to do so by the 
College of Magistrates after enquiry into the circum- 
stances.' 

From the above-cited passage it is plain that though 
the consent of parents was required in the case of the 
marriage of major children, such consent was easily 
presumed and might not be unreasonably withheld. If 
consent was withheld the Court determined whether the 
grounds of refusal were sufficient.^ In the modern law 
the consent of parents is not necessary when the parties 
to the marriage are of full age. 

C. The formal requirements of marriage. In early times, 
Grotius tells us, marriages were perfected with little or 
no ceremony.^ The blessing of the Church was not always 
invoked. To provide against the scandals consequent 
upon such a state of things the Political Ordinance, by 
Art 3,* for the first time gave statutory authority to the 
canonical practice of pubhcation of banns. 

' Those who after the pubhcation of these presents shall 
desire to enter upon marriage shall be bound to appear 
before the Magistrate or Ministers of Rehgion in the towns 
or places of their residence, and there apply for the granting 
to them of three Sunday or market banns, to be made in 

^ Van Leeuwen, 1. 14. 6 ; Hoola van Nooten, vol. 1, p. 311 ; V. d. K. 
Th. 78-81 ; V. d. L. 1. 3. 6. Van Leeuwen (1. 14. 7) specifies the 
circumstances which the judge will usually take into consideration. 

2 Gr. 1. 5. 16 ; Van Leeuwen, 1. 14. 3. 

^ 1 G. P. B. 331. 



MARRIAGE 77 

the Churches or from the Council-House or other places 
where justice is administered, on three successive Sundays 
or Market Days : which banns shall be granted and made 
to the end that any one who wishes to advance any let 
or hindrance, whether of blood, affinity or pre-contract of 
marriage, by reason of which the marriage should not go 
forward, may do so.' 

If no such let or hindrance was alleged, the marriage 
was shortly afterwards celebrated by a minister of rehgion 
or by the magistrate. In the latest Dutch Law the civil 
marriage was indispensable, a rehgious ceremony being 
left to the option of the parties.^ 

With regard to the solemnization of marriage at the 
present day the reader is referred to the statute law of 
the several colonies.^ 

Section 3. The Legal Consequekces of Marriage 

The legal consequences of marriage may be considered, The legal 
first, in relation to the personal status and capacity of the q°^Jgg ^f 
wife ; secondly, in respect of the property of the spouses, marriage ; 

A. Effect of marriage on the personal status and capacity A. Effect 
of the wife. This consists principally in the marital "/age^as re- 
power of the husband over the wife,* with its consequences, garde the 

, . - . n personal 

which are as follows : status and 

L The wife acquires the rank or dignity of the husband, capacity 
which after the husband's death she retains durante wife: 
viduitate. She acquires also her husband's forum and (a) rank, 

. . '- forum, and 

domiCll. domioil ; 

2. Though she may have been of full age before marriage, (b) she be- 
on marriage she is deemed to be a minor under the ^"^o'on 
guardianship of her husband, the paternal power ceasing.* marriage ; 
Like a minor, she has no independent persona standi 

1 V. d. K. Th. 84 ; V. d. L. 1. 3. 6 (ad fin.). 

2 (South Africa) 1 Maasdorp, chap, iv, and Nathan, Common Law 
of 8. A., vol. i (2nd ed.), p. 224 ; (Ceylon) Ord. No. 19 of 1907 ; (British 
Guiana) Ord. No. 25 of 1901. 

3 V. d. L. 1. 3. 7. 
" Voet, 23. 2. 40. 

s Gr. 1. 5. 19 ; Van Leeuwen, 1. 6. 7. 



78 



THE LAW OF PERSONS 



(c) hus- 
band ad- 
mimsteis 
wife's pro- 
perty ; 



(d) does 
not render 
an ac- 
count ; 

(e) con- 
tracts in 
his wife's 
name ; 



in judicio. She must sue or be sued assisted by her 
husband.-^ 

3. As administrator of his wife's property the husband 
may aKenate and encumber it as he pleases without her 
consent.^ This applies even to property which she has 
kept out of community. The wife, on the other hand, 
may not alienate or encumber her property without his 
consent,^ unless in due course of trade.* 

4. The husband is not compellable to render an account 
of his marital administration,® nor to indemnify the wife 
or her heirs for his negligence.* 

5. The husband may contract in his wife's name, and 
render her liable '' or entitled * under contracts so made. 
The wife cannot, without the consent of her husband, 
render herself civiUy liable by her contracts ^ except in 
cases in which a minor would be liable. ■^'' But she does 
incur a natural obhgation, which is a good foundation for 
a contract of suretyship, and will exclude the condictio 
indebiti in case she has paid money in ptu-suance of such 
obligation, after her husband's death.-'^ Contracts made 
without her husband's authority being civilly void, neither 
wife nor husband can be sued upon them either dming 
the marriage or after its determination.^^ Subsequent 
ratification by the husband, however, has the same effect 
as antecedent authority, and so also, it seems, has tacit 
acquiescence.-^^ 



1 Gr. 1. 5. 22-23 ; Van Leeuwen, ubi sup. ; Voet, 6. 1. 14 ff., 
and 23. 2. 41 ; V. d. K. Th. 95. But a woman married out of com- 
munity who has the management of property is entitled to sue in her 
own name without the assistance of her husband. Boyes v. Verzigman 
(1879) Buch. 229. 

^ Gr. 1. 5. 22 ; Schorer ad Gr. 2. 48. 2 ; Van Leeuwen, ubi sup.; 
Voet, 23. 2. 58 ; 23. 4. 21 ; 23. 5. 7 ; V. d. K. Th. 92. This extends 
to donations to third parties unless fraudulent. Voet, 23. 2. 54. 

3 Gr. 1. 5. 23 ; Van Leeuwen, 2. 7. 8. * Gr. loc. cit. 

5 Sande, Decis. Fris. 2. 4. 1. « V. d. K. Th. 91. 

' Gr. 1. 5. 22 ; 3. 1. 30 ; V. d. L. 1. 3. 7. » Gr. 3. 1. 38. 

9 Gr. 1. 5. 23 ; Voet, 23. 2. 42. 
" Voet, 23. 2. 43. 

^' V. d. K. Th. 96. Secus if payment has been made during his life- 
time without his authority. Voet, 12. 6. 19. 

12 Voet, 23. 2. 42. 



MARRIAGE 79 

6. Though a wife's contract cannot be enforced against (f) wife's 
her, she may, if she pleases, confirm it after her husband's °^" , 

,,,„.. contracts 

death and enforce it agamst the other contractmg party, may be 

7. The contracts of a wife, as of a minor, are in certain after^hus- 
cases legally operative. Thus : (a) She may enter into band's 

a unilateral contract which is solely to her advantage. ,^f \ 
Her husband reaps the benefit, and payment must be are in 
made to him, and not to the wife without his knowledge.^ 7^ei^ 

(b) Husband and wife are rendered liable by the wife's cases 
contracts, though made without the husband's authority t:^eT Viz. 
or ratification, to the extent of their enrichment — that is, (") if uni- 
to the extent to which he or she has taken a benefit and'ad- 
under the contract.^ vantage- 

(c) A wife who is authorized or permitted by her hus- /^> y g^. 
band to carry on the business of a pubhc trader binds richment 
herself and her husband by her trade contracts.* It (^)^f the 
makes no difference whether she is above or below the wife is a 
normal limit of full age.^ The wife's authority to bind ™ ^^ ' 
herself or her husband ceases if the husband has revoked 

his consent. Such revocation must be communicated to 
third parties and cannot be made to their prejudice in 
respect of transactions already begun.* 

{d) A wife may bind herself and her husband by contracts (S) if inci- 
incidental to the household.'' This authority results from t^e home- 
the wife's position as domestic manager and cannot be told. 
taken from her except by judicial decree and pubhc 

^ Voet, 23. 2. 43. Van Leeuwen (1. 6. 7), citing Stockmans, Decis. 
no. 52, says that the wife's contracts do not revive upon the dissolu- 
tion of the marriage, but this must be understood to mean ' do not 
revive against her will '. ^ Voet, 23., 2. 44. 

3 Gr. 1. 6. 23 (ad fin.) ; Voet, 23. 2. 43 ; V. d. L. 1. 3. 7. 

* Gr. 1. 5. 23 ; Van Leeuwen, 1. 6. 8 and 2. 7. 8 ; Voet, 23, 2. 44 ; 
V. d. L. vbi sup. ^ Voet, loc. cit. ^ Voet, loc. cit. 

' Gr. uhi sup. ; Van Leeuwen, vAi sup. ; Voet, 23. 2. 46 ; Mason 
V. Bernstein (1897) 14 S. C. 504. The wife is only liable to the extent 
of a half, and if community of property and of profits has been excluded 
may claim indemnity from her husband or his heirs. V. d. K. Th. 99. 
When a wife has been deserted by her husband, and buys necessaries 
for herself and her chil(b:en, she is liable to the extent of one-half only, 
even though the tradesman when supplying the goods stated that he 
would not give credit to the husband. Grassinan v. Hoffman (1885) 
3 S. 0. 282. 



80 THE LAW OF PERSONS 

notification.^ It is for the judge- to say whether a par- 
ticular contract falls within the permitted class. Much 
depends upon the custom of the country, the husband's 
condition and resources, and the previous course of dealing. 
It is all one whether the wife has purchased goods for 
domestic use, or borrowed money for the purpose of 
doing so.* 
(h) Ex- 8- As above observed, the wife is entitled* and bound 

H"*°*,. by the husband's post-nuptial contracts. She is liable 
biiity for for them to the fullest extent during the continuance of 
the marriage, and after its determination to the extent of 
one-half.^ 
B. Effect B. Ejfect of marriage in respect of the property of the 
spouses. By the common law of Holland, in the absence 
of ante-nuptial contract, marriage creates ipso jure a com- 



husband's 
contracts, 



of mar- 
riage as 



perty of munity of goods {communio bonorum — gemeenschap van 
*'^^ goederen) between the parties.® This community is often 

spouses. , J. . 

Com- spoken of as statutory, not that it was introduced by any 

mumty of specific statute, but because its existence is recognized by 

numerous ancient statutes and privileges,' as forming 

^ Gr. ubi sup. i 't welok een man niet en kan beletten, ofte hy most 
sijn vrouw oock dat bewint reohtelick verbieden, ende 't selve doen 
afkondighen. The meaning of ' reohtelick ' appears from Voet 
(23. 2. 46), who says : nisi hujusoemodi rei domesticae cura ac circa 
earn contrahendi lioentia ad mariti desiderium uxori publica magi- 
stratus auctoritate justas ob oausas interdictum sit. Does this hold 
good to-day ? 

" When the trial is by judge and jury it would be for the judge to 
say whether the contract in question could, in law, come within the 
permitted class ; and this being decided affirmatively, for the jury to 
say whether in fact it did so. ' Voet, ubi sup. 

* Gr. 2. 11. 17 ; 3. 1. 38 ; V. d. K. Dictat. ad loc. ; i. e. she is entitled 
after the dissolution of the marriage to the extent of one-half. 

« Gr. 1. 6. 22 ; Voet, 23. 2. 52 ; V. d. L. ubi sup. ; unless com- 
munity of goods and of profit and loss has been excluded. V. d. K. 
Th. 93. Even when community of profit and loss has been excluded, 
she is liable, after her husband's death, to the extent of one-half for 
goods applied to the maintenance of the family, retaining, however, 
a right of recourse against the husband's heirs. Cens. For. 2. 1. 11. 7. 

« Gr. 2. 11. 8 ; Voet, 23. 4. 1 ; Hoola van Nooten, vol. i, p. 399 ; 
V. d. K. Th. 216. The historical origin of community of goods has 
been much discussed. See Voet, 23. 2. 66, and authors there cited. 
For the results of modem research see Fock. And., vol. ii, pp. 164 S. 

' Hoola van Nooten, vol. i, pp. 401 and 408. Many of these are 
collected in Rechtsg. Obs., pt. 2, pp. 90 S. 



MARRIAGE 81 

an integral part of the law of the country. As such it is 

a purely Germanic institution, and derives nothing from 

the law of Rome. The effect of community, where it its effects. 

exists (for in Ceylon ^ and British Guiana ^ it exists no 

longer) is to create a joint fund under the administration 

of the husband, consisting (with some exceptions) of all 

the property of both the spouses, as well existing at the Includes 

time of the conclusion of the marriage as after-acquired.^ P'^°P^'"*y' 

It extends to all property of the spouses,* wherever 

situated,^ immovable as well as movable, and to jura in 

personam, or rights arising from obhgations, as well as to 

jura in rem. Conversely, the lawful liabilities of the andlia- 

spouses, whether ante-nuptial or post-nuptial, are also ^oth^' °* 

charged upon the community and go to diminish' the spouses j 

joint estate.^ Community begins when marriage begins, 

i.e. so soon as the necessary rites or ceremonies have 

^ Ceylon, Matrimonial Eights and Inheritance Ordinance (No. 15 of 
1876), sec. 8 : 'There shall be no community of goods between husband 
and wife, married after the proclamation of this Ordinance, as a conse- 
quence of marriage.' 

2 Brit. Gui., Ord. No. 12 of 1904, sec. 6. In Natal by Law No. 22 
of 18B3, sec. 2, community of goods does not attach to any spouses 
married elsewhere than in South Africa, unless the spouses by agree- 
ment exempt themselves from this law. 

3 Voet, 23. 4. 30 ; V. d. K. Th. 91-92 ; V. d. L. 1. 3. 8 ; Hoola 
van Nooten, vol. i, p. 408. This is expressed in the proverb : Man 
ende wijf hebben geen verscheyden goet. Anton. Matthaeus, Paroem. 
no. 2. 

* With some exceptions, however: viz. (1) Feuds (in the Dutch Law); 
(2) Property burdened with a fidei-commissum, except only as regards 
the profits until the f.-c. takes effect, Gr. 2. 11. 10 ; Voet, 23. 2. 71 ff. ; 
V. d. K. Th. 220-1 ; (3) Jewels, &o., given by the bridegroom to the 
bride on marriage. Van Leeuwen, 4. 24. 13 ; (4) Clothes, Hoola van 
Nooten, vol. i, p. 411. 

° Voet, 23. 2. 85 and 23. 4. 29 ; unless the law of the lex situs requires 
a more formal mode of transfer, in which case a personal action lies to 
compel transfer in due and solemn form. Chiwell v. Carlyon (1897) 
14 S. C. at p. 66. 

° ' Die den man of de vrouw trouwt, trouwt ook de schulden.' 
Gr. 2. 11. 12 ; V. d. K. Th. 222 — so much so that an ante-nuptial 
stipulation to the contrary is void in law, unless community of goods 
is also excluded. Voet, 23. 2. 80. A married woman therefore may 
be utterly ruined by her husband's extravagance, but the remedy is in 
her own hands, viz. to apply to the Court for a separation of goods 
(boedelscheiding) and, if necessary, to have the husband interdicted 
as a prodigal. Gr. 1. 5. 24 ; Voet, 23. 2. 52 ; Hoola van Nooten, 
vol. i, p. 417 ; V. d. L. 1. 3. 7 (in fin.). 
1713 G 



82 



THE LAW OF PERSONS 



ends on 
dissolu- 
tion of 
marriage 



whereon 
ante-nup- 
tial lia- 
bilities, 
still undis- 
charged, 
burden 
the ori- 
ginal 
debtor 
alone. 



been performed ; ^ it persists during its continuance and 
ends upon its dissolution. Thereupon the common fund 
is divided ipso jure into two equal shares, one of which 
vests in the surviving spouse, without regard to the 
amount which such spouse may have contributed, the 
other of which vests in the testamentary or intestate 
successors of the deceased.^ On the dissolution of the 
community post-nuptial liabilities attach to the extent 
of one-half to each moiety of the now divided estate.* 

Ante-nuptial liabiHties on the other hand, which have 
not been discharged during the marriage, revert exclu- 
sively to the side from which they originally came.* 
Community of goods being an institution of the Roman- 
Dutch common law, aU marriages are, in the absence of 
proof to the contrary, presumed to have been contracted 
in community,^ and the legal consequences of community 
follow, except so far as they are excluded expressly or by 
necessary impHcation. They attach not only to a first, 
but also to a second or subsequent marriage,* subject, 
however, to certain rules and restrictions to be presently 
mentioned. There are, nevertheless, certain cases to 
which the rule of community does not apply. These 
are : (1) when the parties are within the prohibited 



"■ Gr. 1. 5. 17 ; 2. 12. 5 ; Neostad., de pact, antenupt. Obs. 15-17; 
Van Leeuwen, 4. 23. 3. 

^ Gr. 2. 11. 13. Children who have received advances must bring 
them into collation for the benefit of the joint estate before division. 
Ibid. ; V. d. K. Th. 223. 

3 Gr. 1. 5. 22 ; V. d. K. Th. 93 and 223. Creditors may sue the 
husband or his heirs for the whole debt, the wife or her heirs only for 
half. The husband (or his heirs) has recourse against the wife (or her 
heirs) to the extent of one-halt. Gr. 2. 11. 17 ; Voet, 23. 2. 52 and 80. 
If the husband is insolvent the creditors may proceed by right of surro- 
gation against the wife for the recovery of half the debt. Voet, ibid. 

* Gr. 2. 11. 15 ; Van Leeuwen, 4. 23. 6 ; Hoola van Nooten, vol. i, 
p. 415 ; V. d. K. Th. 224. According to Voet (23. 2. 80), if the 
husband (or his heirs) has discharged the whole of an ante-nuptial 
debt, he (or they) has (have) regressus against the wife or her heirs in 
respect of one-half. Schorer {ad Grot, ubi sup.) takes the same view. 
Van der Keessel {ubi sup.) dissents. See Loenius, Decis., case 99, and 
Boel's Excursus. 

^ Fame v. Tulbagh Divisional Council (1890) 8 S. C. 72. 

« Van Leeuwen, 4. 23. 5 ; V. d. K. Th. 219. 



MARRIAGE 



83 



Ante-nup- 
tial con- 
tracts : 



degrees (But community continues so long as they are Cases in 
innocently ignorant of their relationship. If one party ^^^^ 
comes to know of it and conceals it from the other, com- munity of 
munity continues so far only as it is advantageous to |°ex-^ 
the innocent party — i.e. there is community of gains, but "i^ded. 
not of loss.) ; (2) when a minor has married without the 
necessary consents ;i (3) (most important of all) when 
community is excluded by ante-nuptial contract, of which 
we are next to speak.^ 

Section 4. Ante-nttptiax, Contracts 
No persons need marry in community of goods unless 
they wish to do so. It is always open to the spouses to 
exclude or modify the common law by ante-nuptial 
contract.^ ' Ante-nuptial contracts, being of wide appli- 
cation,' says Van der Keessel, ' can scarcely be otherwise 
defined than as agreements between future spouses and 
other interested persons regarding the terms or con- 
ditions by which the marriage should be regulated.' * 
According to Van der Linden, to be valid such a contract 
must be in writing ® and contained in a pubHc instrument, 

1 Supra, pp. 72 S. Van der Linden (1. 3. 8) adds ' when the parties 
have eloped ' (Placaat van de Staaten van Holland, Feb. 25, 1751 ; 
8 G. P. B. 536). In all these cases one or both of the spouses are pre- 
cluded by way of penalty from taking any benefit under the marriage, 
whether by community or by ante-nuptial pact. Hoola van Nooten, 
vol. i, pp. 419-20. The general opinion is that the Edict of 1540 
operates to the disadvantage of the major spouse only. Groen. ad Gr. 
2. 11. 8 ; Van Leeuwen, 4. 23. 3 ; Voet, 23. 2. 20. Van der Keessel 
{Th. 218) dissents. 

^ Community may also be put an end to by boedelscheiding, which 
may be decreed on the ground of prodigality {supra, p. 81, n. 6), or 
in the event of judicial separation (V. d. K. Th. 231. Vide infra, p. 99). 
The curious custom which allowed the wife to repudiate the community 
and by consequence the debts by ' going out before the bier ', 
(Gr. 2. 11. 18-19 ; Hoola van Nooten, vol. i, p. 463), is said by V. d. K. 
(Th. 226), to be 'multis statutis concessum,' and, therefore, does not 
make common law. 

' Gr. 2. 11. 8 ; V. d. K. Th. 227. * V. d. K. Th. 228. 

' V. d. L. 1. 3. 3. Writing was not necessary by the common law. 
Gr. 2. 12. 4 ; Cens. For. 1. 1. 12. 9 ; Voet, 23. 4. 2 ; V. d. K. Th. 229. 
Van der Linden's opinion that writing was necessary in his day is based 
upon certain Ordinances requiring ante-nuptial contracts to be sealed. 
But perhaps merely verbal agreements are not thereby forbidden. 
The authors of the Bechtsg. Obs. (pt. 2, no. 35) agree with Van der 

G2 



Is writing 
necessary 
to their 
validity ? 



84 



THE LAW OF PERSONS 



Registra- 
tion of 
ante-nup- 
tial con- 
tracts. 



Who 

maybe 

parties. 

Such con- 
tracts 
serve two 
purposes. 



although, he adds, ' registration in Court is not required, 
since the law on this point as enacted by the placaat of 
July 30, 1624, has never been observed in practice.' ^ 

In the practice of Cape Colony writing was invariably 
employed, and by Act 21 of 1875, sec. 2, an ante-nuptial 
contract requires to be executed before a notary and 
two witnesses (underhand documents not being entitled 
to registration) and registered in the office of the Registrar 
of Deeds,^ and a duplicate or notarial copy of the contract 
must be left in the office of the Registrar of Deeds for 
general information. It is to be noted, however, that the 
absence of registration only affects the vaMdity of the 
contract as regards creditors. An unregistered contract 
cannot operate to their prejudice so as to deprive them of 
any rights which they would have in the absence of ante- 
nuptial contract by the common law. As regards the 
parties to the contract, however, and persons claiming 
through them, as well as others taking a benefit under it, 
the contract holds good in the absence of registration 
and even (semble) though not reduced to writing.^ In 
this connexion it should be observed that the parties to 
an ante-nuptial contract may be not only the spouses 
but also any relatives or others who may be disposed to 
exercise any liberality towards them.* In fact the con- 
tract often serves a double purpose : first, its obvious one. 

Linden, as also de Haas in his note to Cens. For. {ubi sup.). Van 
der Keessel {ubi sup.) and Hoola van Nooten (vol. i, p. 442) do not 
consider writing indispensable. But satisfactory proof, and therefore 
the presence, at the least, of competent witnesses is necessary, if an 
ante-nuptial contract is to affect creditors. Voet, 23. 4. 3-4 ; V. d. K. 
ubi sup. ; Holl. Cons., vol. iv, no. 35. 

1 Groen. de leg. abr. ad Cod. 5. 12. 1, ult. ; Voet, 23. 4. 4 and 60. This 
statute did not, however, require registration in all cases, but only 
when tte ante-nuptial contract created a f.c. or prohibition of alien- 
ation of immovable property. In Brit. Gui. an ante-nuptial contract 
need not be notarially executed [G.]. 

^ At the Cape the combined effect of Act 21 of 1875, sec. 7, and of 
Ord. 27 of 1846, sec. 1, is that ante-nuptial contracts executed in the 
Cape Province must be registered within a certain specified time of 
execution, but not necessarily before marriage. See S. A. L. J. (1912), 
vol. xxix, p. 39. 

3 Voet, 23. 4. 2 and 4 ; 1 Maasdorp, p. 49. 

« Voet, 23. 4. 10-11. 



MARRIAGE 85 

to exclude or modify the incidents of marriage at the 
common law ; and secondly, if desired, to regulate the 
devolution of the property contributed to the marriage 
after the death of one or both of the spouses. In this 
latter event the contract plays the part of what in English 
Law is called a marriage-settlement. 

Generally speaking, any condition whatever may be what 
introduced into a marriage contract provided that it is *^™1 

° ^ may be 

not contrary to law or good morals.^ Some stipulations inserted in 
are disallowed as contrary to the legal nature of marriage, t^fcon? 
Such are conditions : (1) that the husband shall be under tracts? 
the guardianship of his wife ; ^ (2) that a second wife Certain 
shall take more than a child's portion under the first stipula- 
marriage ; ^ (3) that donations shall be permitted or naTper-" 
legacies not permitted between the spouses.* Provisions mitted. 
to the effect : (4) that the husband shall not change liis 
domicU without his wife's consent ; * and (5) that a 
husband shall not represent his wife in Comrt, but that 
she shall have a persona standi of her own,^ though con- 
demned by Voet, are allowed by Van der Keessel.^ The 
last of these indeed is so far from being open to objection 
at the present day, that where there is exclusion of com- 
munity and of the marital power, the yriie has as full 
capacity to appear in Court, whether as plaintiflE or defen- 
dant, as if no marriage had taken place.* 

A stipulation that a wife should share in profits 
but not in losses, though condemned by Grotius ^ and 
Neostadius,^" is in Van der Keessel's ^^ opinion free from 
objection. 

1 Voet, 23. 4. 19 ; Hoola Van Nooten, vol. i, pp. 457-8 ; V. d. K. 
Th. 228, and 233 fF. ; V. d. L. 1. 3. 4. 

2 Voet, 23. 4. 20. ^ Gr. 2. 12. 6. This only applies where 
the lex hac ediotali is unrepealed. Cod. 5. 9. 6. 

* Voet, libi sup. ; Hall v. Hall's Trustee and Mitchell (1887) 3 S. C. 3. 

° Voet, ubi sup. ; Hoola Van Nooten, ubi sup. 

° Voet, ubi sup. and 5. 1. 14^15. 

' V. d. K. Th. 228, and Dictat. ad loc. 

8 Boyes v. Versigman (1879) Buch. 229. ' Gr. 2. 12. 9. 

^^ Neostad. de pact, antenupt. Obs. 21 {in notis). 
" V. d. K. Th. 249 ; for, as he says : creditoribus etiam nihil nooet, 
cum lucrum intelligi nequeat, nisi damno prius deduoto. 



86 



THE LAW OF PERSONS 



Per- 
mitted 
stipula- 
tions fall 
into cer- 
tain de- 
fined 



of nar- 
rower or 
wider 
extent. 



To undertake a detailed discussion of the various 
ante-nuptial stipulations which are or may be made is 
beyond our scope. We shall indicate, however, the 
principles which govern the interpretation of such agree- 
ments, and mention the objects usually aimed at and 
the effect produced. So far as they are directed to the 
modification or exclusion of the common law they fall into 
weU-defined groups according as the exclusion is more or 
less complete ; and in this connexion it must be remem- 
bered that ante-nuptial contracts are strictly construed, 
and that the presumption is in favour of the continuance 
of the common law in aU cases where its exclusion is 
not clearly expressed or imphed.^ 

The consequences of marriage in community have been 
seen to be mainly two : viz. community of goods (which 
extends not only to goods brought into the marriage, but 
also to subsequent acquisitions^ and profits), and the mari- 
tal power. Now, any or all of these consequences may be 
excluded by ante-nuptial contract. Thus the parties may : 

1. Exclude (a) community in respect of goods brought 
into the marriage, leaving it unimpaired as regards (6) post- 
nuptial acquisitions, (c) profits and losses, and (d) the 
marital power. Such is the effect of a stipulation which 
does not exclude community of goods in terms, but pro- 
vides that ' the goods brought into the marriage shall 
return to the side whence they came '.^ 

2. Exclude community of goods, whether (a) brought 
into the marriage, or (6) after-acquired (other than 
' profits '), leaving unimpaired (c) the community of profit 
and loss, and (d) the marital power. 

3. Exclude community of goods whether (a) brought 
into the marriage, or (6) after-acquired (not being profits), 
and (c) community of profit and loss, leaving only {d) the 
marital power. 



1 Gr. 2. 12. 11 ; V. d. K. Th. 251. 

^ By ' subsequent acquisitions ' is here meant " subsequent acquisi- 
tions ' not referable to the head of profits. This will be explained 
below. " Voet, 23. 4. 46 ; Hoola van Nooten, vol. i, pp. 450-1. 



MARRIAGE 8? 

4. Exclude all community (a), (6), and (c) and the marital 
power {d) as well.^ 

In speaking of the legal consequences of marriage (sec. 3, In ante- 

supra) we used the phrase ' community of goods ' in the oontraJts 

sense of the statutory community of the common law 'com- 

with aU its consequences. This exists independently of ^odL*^is 

any contract. But in ante-nuptial contracts the phrase contrasted 

. . „ , with oom- 

acqurres a narrower meamng, -viz. community of goods munity of 

whether (a) brought into the marriage, or (b) after- PJ°^* ^°*^ 

acquired (other than ' profits '), but not (c) community of 

profit and loss. Accordingly, where community of goods 

(alone) is expressly excluded, the phrase is understood 

in the narrower sense, and community of profit and loss 

is tacitly reserved ; ^ and, conversely, where community 

of profit and loss is expressly reserved, community of 

goods (in the narrower sense) is tacitly excluded.^ It 

is necessary, therefore, to determine with some precision 

the meamng of ' profits ' or ' acquests ', as they are also '^'^ . 

called. Briefly, the phrase includes all post-nuptial ac- of profit': 

quisitions, which the law does not attribute to one spouse ^hat the 

alone. Thus it comprises: (1) the fruits* and other *j^*°" 

profits of all the goods belonging to the community or to 

either spouse severally, whether originally brought into 

the marriage or acquired subsequently ; (2) all profits 

accruing from the work, labour, industry, or skill of either 

of the spouses ; ^ (3) official and other salaries ; (4) rights 

^ A writer in the S. A.L.J. (1912), vol. xxix, p. 37, criticizes the 
phrase ' exclusion, of the marital power ', and says ' It is certain that 
the marital power . . . cannot be entirely excluded by an ante-nuptial 
contract '. The phrase, however, is now statutory (Administration of 
Estates Act, 1913, sec. 83 (2) ), and means, I suppose, ' the marital power 
which the husband by law possesses over the property and the estate oi 
his wife ' (see Precedent of ante-nuptial contract, Appendix B to this 
book (infra, p. 109), clause 5). Hoola van Nooten (vol. i, p. 453) 
gives a clause of similar import,, viz., ' dat gemeenschap van goederen 
en van winst en verlies uitgesloten zal zijn; en dat de man geen 
recht zal hebben om de goederen van zijne vrouw te alieneeren, of te 
bezwaaren '. ^ Gr. 2. 12. 11 ; Voet, 23. 4. 28. = Voet, ibid. 

* Gr. 2. 12. 12 ; Voet, 23. 4. 32 ; Hoola van Nooten, vol. i, p. 427. 
The profits of goods subject to fidei-commissum are included under the 
term 'fruits ' (Gr. 2. 11. 10) ; also the benefit of a usufruct. V. d. K. 
Th. 253. ' Voet, ubi sup. 



88 THE LAW OF PERSONS 

under contracts concluded by the husband, or by the 
wife within the limits which the law allows ; ^ (5) property 
purchased stante matrimonio with common moneys,^ and 
even with the money (or with the proceeds of the sale of 
the property) of one of the spouses ; except that in the 
last case the matter must be adjusted between the spouses 
on the dissolution of the marriage.^ 
what it On the other hand, the term ' profits ' does not include : 
^°Tde* (*) property which became due to one or other of the 
spouses before marriage ; * (6) accessions (e. g. by alluvion 
or increased value or otherwise) to the separate property 
of husband or wife ; (c) inheritances, legacies, or gifts 
accruing after the marriage to either spouse.®, With 
regard to this last group considerable difference of opinion 
existed whether it fell within the definition of ' profits ' 
or not. Most jxu:ists answered the question in the nega- 
tive.® Voet distinguishes according as such acquisitions 
are derived from strangers or from parents or relations, 
to whom there is a right of intestate succession. In his 
view, in the first case they are ' profits ', in the second 
not so.' It is with regard, more especially, to such 
acquisitions as these that it becomes important to deter- 
mine whether an ante-nuptial contract falls within the 
first or the second of the four classes mentioned above. 

^ Hoola van Nooten, vhi sup. 

2 Voet, 23. 4. 33. 

^ Voet, 23. 4. 35 ; i. e. the thing purchased remains common, but 
the spouse with whose money it was purchased is credited as against 
the other spouse with the money so expended. However, property 
purchased stante matrimonio will not become common if the husband 
intended to acquire it exclusively for himself or for his wife. V. d. K. 
(Th. 254) dissenting from Voet (23. 4. 34). Clothes are a case in 
point. Van Leeuwen, 4. 24. 14. 

* Voet, 23. 4. 39 ; e. g. bought before marriage, delivered after 
marriage. V. d. K. Th. 254. The same rule applies to a res litigiosa 
adjudicated to one of the spouses after marriage, even though proceed- 
ings may have commenced after marriage. Voet, 23. 4. 40. 

^ Anton. Matthaeus, Paroemiae, no. 3 (Erfnis is geenwinste) ; Van 
Leeuwen, 4. 24. 6 ; V. d. K. Th. 252. 

' Gr. 2. 12. 11 {ad fin.), and Schorer ad loc. 

' Voet, 23. 4. 43. Matthaeus (vbi sup., sees. 4-7) is of the same 
opinion with regard to legacies, but holds that an inheritance never 
comes under the head of ' profit '- 



' losses ' 



aiARRIAGE 89 

Community of profit implies also community of loss, 
so that if either of these is named the other is taken to be 
implied.^ As between themselves, indeed, the spouses 
may make any terms they please, e. g. to share the profits, 
but to throw all the losses on the husband's estate.^ But 
such a clause will not avaU against creditors who, where 
there is community of profits, are entitled, at all events, to 
enforce half the amount of their claim against the wife's 
estate. 

The word ' losses ' is no less wide in its application than What is 
the word ' profits '. Without attempting a complete ^^°^^^^ 
enumeration of possible cases of loss, it is enough here to t^e term 
say generally that it mcludes all post-nuptial donations, 
unless clearly in fraud of the wife, made by the husband 
of the common property or of the separate property of 
either spouse ; ^ all commercial losses which do not attach 
to the separate property of one of the spouses only ; * and 
all UabUities arising out of the post-nuptial contracts of 
the husband, and also of the wife so far as she is competent 
to bind her husband by her contracts.^ But the term 
' losses ' does not cover the ante-nuptial debts or Habilities 
of either spouse,* nor (semble) KabiUties arising ex delicto,' 
nor loss or deterioration of property belonging exclusively 
to one of the spouses ; * nor necessary expenses.* 

1 Cens. For. 1. 1. 12. 18 ; Voet, 23. 4. 48. ^ q^^^^ jp^^ i i 12. H. 

» Voet, 23. 2. 54. • * Voet, 23. 4. 49. 

^ Hoola van Nooten, vol. i, pp. 431 £E. « Voet, 23. 4. 50. 

' In other words, the joint estate is not chargeable, aa between the 
spouses, with pecuniary liabilities arising ex delicto. See Boel ad Loen. , 
no. 99, p. 640 ; V. d. K. Th. 94 and 225, and Lorenz ad V. d. K. 
Th. 94; Nathan, Common Law of S.A., vol. iii, pp. 1547-8. Infra, 
p. 279, n. 2. 

^ Voet, 23. 4. 49 ; V. d. K. Th. 257 ; unless the loss or deterioration 
in question is imputable to the fault of the other spouse. Voet, 24. 3. 2 1 . 
Useful and voluptuary expenses incurred by one spouse in respect of 
the other's property must be made good so far as the property is found 
at the dissolution of the marriage to have been thereby increased in 
value. Voet, 25. 1. 3-4 ; V. d. K. Th. 257. Any excess of value 
over outlay is reckoned as profits and accrues to the joint account of the 
spouses, if community of profits is not excluded — otherwise to the hus- 
band. Voet, ibid. 

° Voet, 25. 1. 2 ; V. d. K., ubi sup. Necessary expenses are such as 
are required to preserve property from depreciation. Useful expenses 



90 THE LAW OF PERSONS 



Various The above explanation will enable the reader to dis- 

termsin tinguish the effect of a clause excluding community of 

tM^con? goods only (class 2, supra), and of a clause excluding both 

*P'^^g^^ community of goods and also community of profit and 

as regards loss (class 3, supro). The effect of a clause excluding 

effects. community of goods only is that the spouses are not liable 

(a) Ex- ^Q creditors for each other's ante-nuptial debts.^ On 

' com- dissolution of marriage each of them is credited as between 

™"°^*y °* themselves with what he or she brought into the marriage/ 

only; plus subsequent acquisitions not being 'profits', plus 

half the net balance, if any, of profits over losses. Each 

of them is debited with half the net balance, if any, of 

losses over profits,* and by consequence with haK the 

outstanding post-nuptial debts. All this as between the 

spouses. The creditors may, if they please, recover the 

whole of their claim from the husband ; in which case he 

has the right of recourse against his wife to the extent of 

half. They may also, if they choose, after the husband's 

death recover one-half,* but not more, directly from the 

wife. 

If during the marriage the husband has apphed his 
wife's property in paying his own ante-nuptial debts, the 
money so applied constitutes as between the spouses 
a first charge * upon the net balance, if any, of profits 
over losses ; that is to say, the wife is first credited with 

increase the value of the property, though their omission would not 
render it less valuable. Voluptuary expenses add to its amenity, but 
do not render it more profitable — speciem omant non fructum augent. 
Voet, 25. 1.1, 3-4. 

^ Voet, 23. 4. 50 (because post-nuptial debts count as ' damnum ', 
ante-nuptial not) ; V. d. 'K.Th. 255. 

2 Gr. 2. 12. 14 ; Voet, 23. 4. 31 ; V. d. K. th. 256. 

3 Voet, 23. 4. 48. 

^ Gr. 1. 5. 22. In an action against her for such haU, the plaintiff 
must aver and prove that the claim had been duly lodged with the 
person vested with the administration and distribution of the common 
estate and had not been satisfied. Faure v. Tulbagh Divisional Council 
(1890) 8 S. C. 72 ; and see Sichel v. De Wet (1885) 5 E. D. C. 88. 

* Voet, 23. 4. 50. Voet says that in the absence of provision to the 
contrary, the wife's property may siante mairimonio be taken in execu- 
tion for the husband's ante-nuptial debts. Van der Keessel [Th. 255) 
dissents. But if done by the husband's direction, it seems to be a 
logical consequence of the marital power. 



MARRIAGE 



91 



it, and the remainder of such balance is then divided 
between the spouses. The wife cannot claim repay- 
ment until aU post-nuptial creditors have been fully 
satisfied.^ 

The effect of a clause excluding community both of 
goods and of profit and loss ^ is that the spouses are not 
hable to creditors for each other's debts, ante- or post- 
nuptial.' On dissolution of the marriage each of them is 
credited with what he or she brought into the marriage, 
plus subsequent acquisitions from all sources whatever. 

Lastly, by the exclusion of community of goods and of 
profit and loss and of the marital power (class 4, supra) 
a wife is, as regards her property, in the same position as 
if the marriage had not taken place.* She may contract, 
and, according to modern practice, sue and be sued in her 
own name. If the husband has afienated her property 
without her consent she may vindicate it from the 
ahenee.^ But if notwithstanding the ante-nuptial contract 

^ Voet, 24. 3. 21. But she may resume such of her property as 
exists in specie on the dissolution of the marriage, subject to the obliga- 
tion of satisfying creditors pro semisse. Neostad. de pact, antenupt. 
Obs. 9, note A ; and the husband is not entitled to deduct expenses, 
Van Leeuwen, 4. 24. 13. 

" Kersteman says (Woordenboek, sub voo. Huwelyhsche Voorwaarde 
p. 195) that an ante-nuptial' pact of this character must be registered, 

' Except that the wife is liable even solvio matrimonio to creditors 
pro semisse in respect of debts for household expenses (Voet, 23. 4. 52 
Van Leeuwen, 4. 24. 3 ; Neostad. de pact, antenupt., Obs. 9, note (d)) 
with a right of regressus against the husband. V. d. K. Dictat. ad 
Gr. 2. 11. 17. 

* Sometimes this is expressed. So in Ruperti's Trustees v. Ruperli 
(1885) 4 S. C. 22, the wiie reserved to herself free control over her 
property ' as fully and effectually as if no marriage had taken- place '. 
Held, that she had no tacit hypothec upon her husband's insolvent 
estate for money lent by her to her husband before his insolvency. 

^ Voet, 23. 4. 21 and 23. 5. 7 ; Groen. de leg. ahr. ad Inst. 2. 8. pr. 
The effect is the same if the power of alienation is expressly taken away, 
or if the husband has been judicially interdicted. Gr. 1. 5. 24. Van 
Leeuwen, however (4. 24. 4), says that except in the case mentioned by 
Grotius, the alienation of the wife's property by the husband, notwith- 
standing the stipulation to the contrary, will hold good as regards third 
parties, saving to the wife an action against the husband or his heirs. 
Van der Keessel {Th. 97-8) lays down the same rule as regards the aliena- 
tion of movables or of bonds to bearer, but not as regards immovables. 
If Van Leeuwen is right, no ante-nuptial pact can exclude the husband's 
power of administration and of alienation, so far as concerns third 



(b) exclu- 
sion of 
com- 
munity of 
goods and 
of profit 
and loss ; 



(c) exclu- 
sion of 
com- 
munity of 
goods, and 
of profit 
and loss 
and also 
of the 
marital 
power of 
adminis- 
tration. 



92 THE LAW OF PERSONS 

the wife has suffered her husband to alienate her property, 

she may sue him in respect of it, and prove against his 

estate in concurrence with, but not in preference to, other 

unsecured creditors.-^ 

The wife, From what has been said it is evident that, ante-nuptial 

fa^notTpre- Contracts notwithstanding, a wife, generally, stands in no 

ferredto position of advantage with regard to her husband's 

band's^ creditors, but rather the reverse. In this respect she is 

creditors ; j^q^ gQ ^g^ situated as she was under the late Roman Law, 

which gave her a tacit hypothec over all the property 

of her husband in security of her dos, and a preference 

over all creditors, ante- and post-nuptial, secured and 

unsecured, aUke.^ In the Roman-Dutch Law the right 

of hypothec and preference is disused.® It is competent, 

however, by express stipulation to provide that the wife 

but in ' shall reserve to herself her right of dos, legal hypothec,* 

certain and preference ', but only provided that she shares 

haa right neither in community of goods nor of profit and loss.® The 

°*P^^" same result foUows, without express agreement in that 

lerence ' ^ ° 

and legal behalf, when, in addition to the exclusion of community, 
ypot ec. |.jjgj,g j^g ei^}jer : (a) exclusion of profit and loss together 
with a clause that the wife shall keep her own goods {dat 
de vrouw haare goederen zal behouden ; ut mulier dotem 
salvam habeat) ; * or (6) an option left to the wife whether 
she wiU share in profit and loss, or have her own goods 

parties. Ontwerp, art. 349, is to the same effect. But in the modern 
law it is otherwise. Mostetfs Trustees v. Mostert (1885) 4 S. C. 35. 

^ 1 Maasdorp, p. 64. 

2 Cod. 8. 17 (18) 12 ; Girard, p. 966. 

' Voet, 20. 2. 20. 

' V. d. L. 1. 3. 4. It seems that in R.-D. L., contrary to the Roman 
Law, the wife's legal hypothec was in every case postponed to prior 
tacit or special conventional mortgages. GaiU, Pract. Observ. 2. 25. 10 ; 
Van Leeuwen, 4. 13. 14 ; Cens. For. 1. 1. 12. 3 ; Voet, 20. 2. 20 and 
23. 4. 52. According to Van Leeuwen (ubi sup.), she comes in con- 
currently with other special and legal hypothecs ; by which he means, 
as the context shows, that she ranks with them in order of time. Qui 
prior est tempore potior est jure. But V. d. K. {Th. 263) insists that 
she is preferred to all creditors ante- and post-nuptial alike. 

5 Groen. de leg. abr. ad Cod. 5. 12. 30 ; Cens. For. 1. 1. 12. 2 ; 
V. d. L. 4. 13. 14. 

« Voet, 23. 4. 52 ; V. d. K. Th. 247 ; Hoola van Nooten, vol. i, 
p. 452. 



MARRIAGE 93 

back/ which option she has exercised after her husband's 
death so as to exclude community ; or (c) a clause 
prohibiting the husband from ahenating property brought 
into the marriage by the wife, and the husband has never- 
theless alienated the property, or part of it, without her 
knowledge and consent.^ In the last case she will also, it 
seems, be able to vindicate her property in the hands of 
third parties to whom the husband has made it over.^ 
But if the wife, having retained and reserved the possession 
and administration of her own property, knowingly allows 
her husband to deal with it, she will lose her hypothec 
and preference over creditors, just as if she had renounced 
these rights by a contrary stipulation.* 

The ante-nuptial pacts above described have all been Ante- 
directed to the exclusion or modification of the common contracts 
law consequences of marriage.^ It remains to speak of some- 
stipulations of another kind, namely those which may serve the 
be generically described as ' settlements '. Under this Pl""P°s<' 
head may be included : (1) gifts made to one or other of riage set- 
the spouses, but more especially to the wife, either by the 
husband or by some third party, and taldng effect imme- 
diately upon the conclusion of the marriage ; (2) contracts 
whereby the wife or husband is to receive something by 
way of gift at some future date, usually upon the death of 
the other spouse ; (3) provisions regulating the devolution 

^ Gr. 2. 12. 10 ; Voet, 23. 4. 53 ; Neostad. depact. antenupt, Obs. 9 ; 
Groen. uU sup. ; V. d. K. Th. 250. 

^ Van Leeuwen, 4. 13. 14 ; Neostad. op. cit., Obs. 21. 

' Voet, 23. 4. 21 and 50. This consequence does not follow from 
a clause merely securing the wife's property to herself. De Haas 
ad Gens. For. 1. 1. 12. 5 ; Groen. de leg. abr. ad Cod. 6. 12. 30. But 
where there is exclusion of profit and loss such a clause gives her a tacit 
hypothec and preference over post-nuptial creditors. Groen. loc. cit. ; 
V. d. K. Dictat. ad Gr. 2. 12. 9. According to Van Leeuwen (4. 24. 4), 
even a prohibition of alienation by the husband will not entitle the wife 
to recover the property from third parties unless the prohibition has 
been publicly proclaimed (openbaarlyk afgekondigt). 

^ Van Leeuwen, 4. 13. 14 ; MosteH's Trustees v. Mostert (1885) 
4 S. C. 35. 

^ Before passing to another part of the subject it may be well to warn 
the reader that every ante-nuptial contract raises its own problem of 
construction. The rules stated in the text must not be supposed to be 
inflexible. 



tlements. 



94 THE LAW OF PERSONS 

of the property brought into the marriage (or part of it) 
upon the dissolution of the marriage by death. 
Morgen- To gifts of the first kind the old Dutch Law gave the 
^^^^' name of ' morgengave ', a term applied originally to a gift 
by the husband to the wife on the morning after marriage.^ 
A provision which took effect only on the death of the 
husband or wife was known as ' douarie '.^ Prima facie 
there is no legal objection to any such settlement. The 
ante-nuptial pact which creates it is, at all events, binding 
upon the spouses. If made by third parties to either spouse, 
or by the wife to the husband, or by the husband so as 
to confer rights on the issue of the marriage, it would by 
the Dutch common law be good against creditors. But 
when a husband made a gift or promised a douarie to his 
wife the law was otherwise ; for by express statutory 
enactment her claim in this regard was only allowed 
to take effect when her husband's creditors had been fully 
satisfied. The law on this subject is contained in the 
Provisions Perpetual Edict of Charles V of October 4, 1540, Art. 6, 

Perjetual "^^^^ ™^^ ^S foUoWS : » 

Edict of 

?'un''^'^ ^' ' ^^^'"''> whereas many merchants take upon themselves 

Art. 6. *o constitute in favour of their wives large dowers and 
excessive gifts and profit on their goods, as well in order to 
contract a marriage as to secure their goods with their 
aforesaid wives and children, and thereafter are found 
unable to pay and satisfy their creditors, and wish their 
wives and widows to be preferred before all creditors, to 
the great injury of the course of commerce : We will and 
ordain that the aforesaid wives, who henceforth shall 
contract marriage with merchants shall not pretend to, 
have, or receive any dowry {douwarie) or other profit on 
the goods of their husbands, or take part or portion in the 
profits made by the said husbands or during their marriage 
[sic], although they may have been inherited or given in 

^ Hoola van Nooten, vol. i, p. 446 ; Wessels, Hist. R.-D. L., p. 463. 
Boey ( Woordentolk) says : ' Morgengaav is een gift die de Bniidegom aan 
de Bruid gewoon is te doen des anderen daags naa 't voltrokke huwelyk 
als een belooning van haer Maagdom.' V. d. K. Th. 258. 

2 V. d. K. Th. 259 ; V. d. L. 1. 3. 4 : Wessels, uhi sup. 

" 1 G. P. B. 316. 



MARRIAGE 95 

feud.i until such time as all the creditors of their aforesaid 
husbands shall have been paid or satisfied ; whom we 
will in this matter to be preferred before the aforesaid 
wives and widows, saving to the latter their right of 
preference, to which they are entitled by reason of their 
marriage portion, brought by them into the marriage or 
given to them or coming to them by succession from their 
friends and relatives.' ^ 

The effect of the Placaat is : (1) that no ante -nuptial Its effect. 
contract can secure to a wife any property of the hus- 
band in competition with creditors ; but (2) that, if she is 
content, by ante-nuptial contract, to forgo aU advantage 
from the husband's estate, she may keep her own property 
secure and tmimpaired and further enjoy in respect of it 
a preference over creditors and a tacit hypothec over her 
husband's goods. But she cannot have it both ways. If 
she claims to benefit financially by the marriage, she must 
also take her full share in its burdens. In order to secure 
her property against creditors it is necessary that she 
should be content to keep her estate entirely distinct 
from that of her husband. 

It must be observed that though the Placaat speaks 
expressly of ' merchants ', it has never been held to be so 
limited in its application.^ 

If the practice before the passing of this measure 
operated in prejudice of creditors, the enactment has in 
modem times been thought to be undtily oppressive to 
married women.* Accordingly, the law has in many of Legisia- 
the Colonies been altered by legislation in the direction of *'°° ?" 

•' ° T rn marriage 

securing the validity of settlements. Thus in the Cape settle- 
Province the sixth article of the Perpetual Edict has been ^g®"*^ '" 
repealed by Act 21 of 1875, which, in its place, enacts in Africa. 
effect : (1) That no ante-nuptial contract shall be valid 
against creditors imless registered (s. 2) ; (2) that a settle- 
ment made with intent to defraud creditors shall be of no 
force or effect against creditors whose debts existed at the 

^ Al waer 't soo dat By ghe-erft oft beleent waren. 

^ See In re Insolvent Estate ChAapplni (1869) Buch. 143. 

' V. d. K. Th. 262. ^ Wessels, Hist. R.-D. L., p. 464. 



96 THE LAW OF PERSONS 

date of registration, if sequestration takes place within two 
years of the execution of the settlement (s. 3) ; (3) that 
where there is a covenant or agreement for a settlement 
any act done in pursuance thereof is, in like circumstances, 
invalid against creditors whose claim existed at the date 
of such act, for five years from the making thereof (s. 4) ; 
(4) that nothing in the Act contained shall protect any 
ante-nuptial contract or any provision in an ante-nuptial 
contract which apart from the act is void or voidable by 
reason of fraud (s. 11). The statute further enacts that 
if a life policy has been executed or ceded in pursuance 
of an antenuptial contract by one spouse in favour of the 
other, premiums paid by the settling spouse are not to 
be adversely affected by such spouse's insolvency (s. 6). 
Provisions similar to the above have been enacted also 
in the Transvaal ^ and in the Orange Free State. ^ 
Stipuia- Closely akin with, and sometimes indistinguishable 
regard^to from, the Settlements described in the preceding para- 
rights of graphs are pacts relating to future succession.^ These, 

SU.CC6SS10T1 

upon as pointed out by Voet, may relate either : (1) to the 
death. succession of the spouses to each other ; * or (2) to 
the succession of a third party to the spouses ; ^ or (3) to 
the succession to the children of the marriage, parti- 
cularly in the event of their dying under age and there- 
fore intestate ; * or (4) to the succession to a third person 
who has become a party to the ante-nuptial contract.' 
Such agreements, though condemned by the pohcy of 
the Civil Law, were permitted by the law of Holland, if 
they formed part of an ante-nuptial settlement,* but not 
of any other act inter vivos.^ 
Can ante- This brings us to another topic. How far, if at all, 
contracts Can ante-nuptial contracts be revoked or modified by the 
be re- subsequent act of one or more of the parties ? By act 

voked or -^ i. " 

1 Insolvency Law, No. 13 of 1895, sec. 39. ^ j^^^ j^g, 23, 1899. 

^ Voet, 23. 4. 57 (sec. 58 in the Paris ed. In the folio ed. sec. 57 
is duplicated). 

« V. d. K. Th. 235-8. ^ V, d. K. Th. 239-40. 

« V. d. K. Th. 241-3. ' V. d. K. Th. 244-6. 

8 Voet, 2. 14. 16. 9 Voet, 23. 4. 59 (60). 



MARRIAGE 97 

inter vivos they cannot be altered at all ; ^ by testament, modified 
withia limits, they may, provided such an intention is partiS ? 
clearly expressed or implied by the will.^ Of course, if 
property has been contributed to the marriage by a parent 
or other third party with an added provision that it is 
to revert to the giver or go over to another specified 
person, it cannot be affected by the testamentary disposi- 
tions of the spouses.* When the question relates to property 
brought into the marriage by the spouses, and the ante- 
nuptial contract has provided for mutual succession, or at 
all events for the succession of one to the other, altera- 
tion or revocation by will is permitted, but it must be Only by 
a mutual will of the two spouses. Further, such a will wiu."^ 
is merely ' ambulatory ' in effect, i. e. revocable at any 
time before death. Therefore, either spouse may by which, 
a subsequent wiU, without the concurrence or even jnaTin^' 
knowledge of the other, revoke so much of the joint will turn be 
as concerns himself or herself alone and revert to the pro tanto 
dispositions contained in the original contract. Indeed, by either 
even after the death of the first spouse, the survivor has spouses 
the same right of repudiating the joint testament, condi- ^^°^^- 
tionally, however, upon declining all benefit tinder it.* 
When the spouses have by ante-nuptial contract provided 
that some third person or persons shall succeed to the 
several shares on the dissolution of the marriage, both 
spouses by mutual will or a surviving spouse by his or 
her separate will may freely depart from this agreement. 
A joint will is in fact merely two wills of two persons 
disposing of two estates.^ But the law is otherwise if the 
intended successor was a party to the ante-nuptial con- 
tract and acquired a contractual right under it.^ When the 
future succession to children is the subject of the ante- 

1 Neostad. de pact, antenupt, Obs. 4 (in notis) ; Voet, ubi sup. ; 
V. d. K. Th. 264. 

2 Voet, 23. 4. 60 (61) ; V. d. K. Th. 265. 

■" Voet, 23. 4. 61 (62). Seciis if it is merely to revert ' to the side 
whence it came '. * Voet, 23. 4. 62 (63). 

5 Voet, 23. 4. 63 (64). Infra, pp. 324-5. 
« Voet, 23. 4. 64 (65). 
1713 H 



98 



THE LAW OF PERSONS 



Divorce a 
vinculo 
matri- 
monii. 



nuptial pact, in Holland not only might the spouses (or 
the survivor of them) alter the arrangement by testament, 
but the children, having reached the age of testamentary 
capacity, might do the like after their parents' death. 
They might also freely alienate the property by act 
inter vivos. This must be understood, of course, only 
where there was no fideicommissum in favour of ulterior 
successors.^ When a third person has become a party to 
the contract and has undertaken to leave his own property 
in a particular way, such undertaking has the force of 
a contract, and can only be revoked with the consent of 
the other parties to the agreement.^ 

With this we leave the subject of ante-nuptial contracts, 
referring the reader for fuller information to Voet's title 
23. 4 {de pactis dotalibus) and to the other works in which 
this topic is fully considered.^ 

Section 5. Dissolution of Marriage 

Divorce a vinculo matrimonii is decreed by the Court 
at the suit of a plain tiflE of either sex on the ground of : 
(1) adodtery ; * or (2) malicious desertion;^ to which 
some authorities, by an extensive interpretation, add 
(3) sodomy ; * and (4) perpetual imprisonment.'' Relief 
may, in the discretion of the Court, be refused on the 
ground of : (a) adultery on the part of the plaintiff ; ^ 
(&) condonation ; (c) collusion or connivance.® 

Divorced persons are free to marry again, except that 
persons who have committed adultery together are 
prohibited from intermarriage.^" 

1 Gr. 2. 29. 3 ; Voet, 23. 4. 66 (67). ' Voet, 23. 4. 67 (68). 

^ See particularly Neostadius, Observationes rerwm jvdicatarum de 
pactis antenuptialibus. 

* Gr. 1. 5. 18 ; Van Leeuwen, 1. 15. 1 ; Voet, 24. 2. 5. 

5 Voet, 24. 2. 9. 

« Schorer a*Gr. uU sup. ; V. d. K. Th. 88 ; V. d. L. 1. 3. 9. 

' V. d. K. Th. 89 ; V. d. L. loo. cit. ; Jooste v. Jooste (1907) 24 S. C. 
329 ; which discusses also the procedure to be followed in case of 
malicious desertion. * Voet, 24. 2. 5-6. 

" 1 Maasdorp, p. 82 ; Hasler v. Hasler (1896) 13 S. C. 377. 
^" Supra, p. 66. As to custody of children see Van Leeuwen, 1. 15. 6. 



MARRIAGE 99 

The guilty party to a divorce is, after judicial sentence, 
penalized by loss of all the advantages of the marriage, 
whether arising from community of goods or from ante- 
nuptial contract.^ 

Judicial separation a mensa et thoro is decreed by the Separa- 
Court on the groimd of cruelty or for other sufficient mensa et 
cause.^ The result is to relieve the parties from the per- thoro. 
sonal consequences of marriage, but not to dissolve the 
marriage tie. As regards the effect of such a decree upon 
the proprietary rights of the spouses the Dutch authorities 
are by no means agreed.^ In the modern practice the 
matter is very much in the discretion of the Court. An 
order is usually made, if asked for, directing a division of 
the common estate, or a rescission of an ante-nuptial con- 
tract which confers a benefit on the guilty spouse, condi- 
tionally, however, on the innocent spouse renouncing any 
corresponding advantage. The effect of such a decree is 
to dissolve the community, and to free each spouse from 
liability for the other's debts subsequently contracted.* 
Further, in the event of the husband's insolvency the wife 
ranks as a preferred creditor for half of the common 
estate.^ A decree of alimony to the wife lies in the 
discretion of the Court.® 

A decree of nuUity of marriage '^ is granted : (1) when Decree of 
the parties have married within the prohibited degrees ; Carriage. 
(2) at the suit of a parent when minors have married 
without the necessary consent ; (3) in case of impotency 

1 Van Leeuwen, 4. 24. 10 ; V. d. K. Th. 88 ; Celliers v. Celliers 
[1904] T. S. 926. But the Court will not deprive the guilty party of the 
share of the joint' estate which he or she may have contributed. Ibid. 

2 Gr. 1. 5. 20 ; Van Leeuwen, 1. 15. 3 ; Voet, 24. 2. 16. 

3 Schorer ad Gr. 1. 5. 20 ; Voet, 24. 2. 17 ; V. d. K. Th. 90. As to 
the effect, if any, of separation by mutual consent, see Schorer uhi sup. ; 
Voet, 24. 2. 18 ; and for South African Law 1 Maasdorp, p. 76. 

* 1 Maasdorp, p. 77. 

5 Luzmoor v. Luzmoor [1905] T. H. 74. ' To ascertain what this 
half share amounts to, the debts of the common estate up to the date 
of the order of the Court must, of course, be first deducted, and she will 
be entitled to half of what remains.' Per Smith J. 

8 Voet, 24. 4. 18. 

' Voet, 24. 2. 15. 

h2 



100 



THE LAW OF PERSONS 



existing antecedently ^ to the marriage ; (4) in case of 
ante-nuptial stuprum followed by pregnancy of the wife, 
unknown to the husband and not condoned by cohabita- 
tion with knowledge of the facts ; ^ (5) in case of insanity.^ 



Miscel- 
laneous 
matters 
relating 
to mar- 
riage : 

A. Dona- 
tions be- 
tween 
spouses. 



B. Boedel 
houder- 

schap. 



Section 6. Miscellaneoits Mattees relating to 
Marriage 

In this section we shall deal with various matters 
relating to marriage, but not specially connected with one 
another. These are : (A) Donations between the spouses ; 
(B) Boedelhouderschap, and continuation of community 
after the death of one spouse ; (0) Second marriages. 

(A) Donations between the spouses. In the Civil Law 
such gifts were prohibited by custom,* and were regulated 
by a Senatus Consultum passed on the proposition of 
Antoninus (CaracaUa) in the year 206 A. d. ® The rule 
passed into the Roman-Dutch Law.® It follows that 
a spouse donee has no dominium and cannot give a valid 
title to third parties. But such gifts, if validly executed, 
are confirmed by the death of the donor.' Once a donation 
is confirmed, the donee acquires the right to keep the gift, 
if it has been transferred, or to demand it, if it has not. 
The gift may be revoked, and is ipso jure void, if the donee 
predeceases the donor. 

(B) Boedelhouderschap. In certain cases the community 
which exists between the spouses (or would have existed 
if the common law had not been excluded) is continued 

^ Van Leeuwen, 1. 15. 5 ; Voet, 24. 2. 16. See Jones & Ingram, 
Leading Cases in South African Law (pt. 1, Persons), p. 64. 

^ Voet, 24. 2. 15 ; Nel v. Nel (1841) 1 Menz. 274 ; Horak v. Horak 
(1860) 3 Searle 389. 

' Prinsloo's Curators bonis v. Crafford and Prinsloo [1905] T. S. 669. 

^ Dig. 24. 1. 1. 

^ Dig. 24. 1. 32. pr. As to the effect of this S. C. see Roby, Roman 
Private Law, vol. i, pp. 159 ff., and Girard, p. 945. 

« Gr. 3. 2. 9 ; Van Leeuwen, 4. 24. 14 ; Voet, 24. 1. 17 ; V. d. K. 
Th. 486 ; Van der Byl's Assignees v. Van der Byl (1886) 5 S. G. at p. 176. 

' Dig. 24. 1. 32. 2 ; Cod. 5. 16. 1 ; Voet, 24. 1. 4 ; provided that the 
estate of the donor is not then insolvent. Voet, 24. 1. 6. For excep- 
tions to the rule prohibiting donations between spouses see 1 Maasdorp, 
pp. 32-3. 



MARRIAGE 101 

' / / 

(or called into existence) ^ between a surviving sppusa- 
and the heirs of the deceased. This result .jilay>6e 
effected : (1) by the ante-nuptial contract or mutual 
testament of the spouses ; ^ (2) (under a local custom or 
statute) by the separate will of the deceased spouse,* 
ia which the survivor is appointed executor of the will 
and administrator of the joint estate during the minority 
of the children in both cases there must be an express 
direction in the wiU that the community is to continue, 
or come into existence ; (3) by operation of law. This 
takes place in one case only ; viz. ' if the surviving father 
or mother, being at the same time guardian of the children, 
fails to draw up an inventory or make to them the " proof " 
or buy out their interest (noch aan dezelven bewijs, 
vertigting of uitkoop doet). The consequence is that 
the community of goods continues between the survivor 
and the children, and to the advantage of the latter, 
who enjoy the half of all the profits that accrue to the 
estate after the death of their deceased parent, but 
not to their prejudice, inasmuch as all losses are borne 
by the surviving parent.' So the law is stated by Van der 
Linden, who adds : ' At least this rule applies when local 
statutes have not provided differently on this point '. 
Van der Keessel, however, regards this penal and one- 
sided community as resting, in every case where it occurs, 
on local custom only, and, in accordance with a principle 
laid down by himself in an earlier Thesis, takes Grotius 
to task for inferring a rule of common or general law from 
a number of particular instances of merely local applica- 
tion.® However this may be, it appears from the above 
authors as well as from Grotius, Schorer, and Bynkershoek,® 

1 V. d. K. Th. 267 and 144. = V. d. K. Th. 266-7. 

3 V. d. K. Th. 269. 

^ V. d. L. 1. 5. 4 (based on Juta's translation). See also Van 
Leeuwen (4. 23. 7), who says that the law ' has been introduced in 
favour of the innocence of young children, and as a punishment of 
wicked parents '. ^ y. d. K. Th. 270-1. 

° Gr. 2. 13. 2-3 ; and Schorer ad loc. ; Bynkershoek, Quaest. Jur. 
Priv., lib. Ill, cap. x ; Voet, 24. 3. 36 ; Natal Bank, Ltd. v. Bood [1910] 
A. C. 570 ; in appeal from the Transvaal S. C. [1909] T. S. 243. 



102 THE LAW OF PERSONS 

that when the community continues at the desire of 
the parties concerned, viz. by virtue of an ante-nuptial 
contract or mutual will, or, where permitted, by the wiU 
of the deceased, or by agreement between the parent 
and the children, being of full age, it continues for all 
purposes, or at all events for the purpose of profit and 
loss ; and that the one-sided community above described, 
arises not by act of party, but ipso jure, i.e. only 
when the survivor, being under a duty to do so, 
neglects to make an inventory or to assign to the chil- 
dren their share of the joint estate. Finally, it is to 
be observed that, where Boedelhouderschap exists, it is 
not determined by the remarriage of the surviving 
spouse.^ This gives rise to difl&cult questions as to 
the respective shares, when the community eventually 
determines, of the children of the first marriage, the 
remarrying parent, and the second wife (or husband). 
For the resolution of these problems the reader is referred 
to Van der Keessel, Theses, 273-6. In the Cape Province, 
however, such difficulties can scarcely arise, in consequence 
of the statutory provisions to be presently mentioned. 
C. Second (C) Second marriages. In the Civil Law second marriages 
entailed numerous penalties, which, says Van der Linden, 
have not been adopted by us.^ He excepts from this state- 
ment lex 6 of the relevant title in the Code, which is called 
from its opening words the Lex hoc edictali? It is an 
enactment of Leo and Anthemius of the year a.d. 472, and 
provides that no man or woman who remarries, having 
children by a former marriage, may by gift inter vivos 
or by will settle on the second spouse more than the 
amount of the smallest portion bequeathed to any of the 
children of the former marriage.* A gift contrary to this 
law is void to the extent of the excess, and the excess must 
be equally divided amongst the children of the prior 
marriage or marriages alone. 

' Van Leeuwen, 4. 23. 8. 

^ V. d. L. 1. 3. 10 ; and see Van Leeuwen, 1. 14. 14. 

^ Cod. 5. 9. 6 (de secundis nuptiis). * Van Leeuwen, 4. 24. 8. 



MARRIAGE 103 

This well-known enactment need not detain us further, 
since in the Roman-Dutch Colonies it has either never 
been received or been repealed by statute.^ 

Another rule relating to remarriage is that which 
imposes upon the surviving parent, before contracting 
another marriage, the duty of paying or securing to the 
minor children of the first marriage the shares due to them 
out of the estate of the deceased.^ By the Civil Law 
the penalty for remarrying in breach of this rule was 
the forfeiture by the defaulting spouse of any property 
accruing to him or her from the estate of the deceased.* 
In South Africa the defaulting spouse forfeits his or her 
share in the joint estate for the benefit of the minor 
children, besides incurring a statutory penalty of fine or 
imprisonment.* 



CHAPTER VI 

UNSOUNDNESS OF MIND. PRODIGALITY 

In an earlier chapter we saw that curators dative are Unsound- 
appointed by the Court for insane persons, and (after ^^^j" 
interdiction) for prodigals. It is tempting to speak of 
unsoundness of mind as constituting a status ; but it 
would not be correct to do so, for mental unsoundness is 
not necessarily permanent or constant, and the question 
which must be answered is not, 'Has the man been declared 
mad ? ' but, ' Was he, in fact, incapable of understanding 

1 Repealed in the Cape Province by Act 26 of 1873, sec. 2 ; in the 
Transvaal by Prool. 28 of 1902, sec. 127 ; in the Free State by the Law 
Book of 1901, chap, xcii, sec. 1 ; in Natal by Laws No. 22, 1863, sec. 3 ; 
No. 17, 1871, sec. 1 ; No. 7, 1885, sec. 3 ; in British Guiana by Ord. 
No. 12 of 1906, sec. 10. In Ceylon the lex hac edictali has, apparently, 
never been recognized. 

2 Gr. 1. 9. 6-7 ; Voet, 23. 2. 100-1 ; V. d. K. Th. 142 ff. ; Adminis- 
tration of Estates Act, 1913, sec. 56. 

' Voet, 23. 2. 101 : Binubus aut .binuba amittat proprietatem 
relictorum sibi a priore conjuge cessuram aequaliter liberis prioris 
thori . . . solumque retineat usumfructum, quamdiu superstes fuerit. 

* Administration of Estates Act, 1913, sec. 56 (3). 



104 



THE LAW OF PERSONS 



Furiosus 

nullum 

negotium 

gerere 

potest. 



Qualifica- 
tions of 
the rule. 



Inter- 
dicted 
prodigals. 



the particular transaction which is brought in issue ? ' ^ 
If the answer is affirmative, then the transaction is wholly- 
void ^ for ' furiosus nullum negotium gerere potest, quia 
non inteUigit quid agit'.* The same principle applies 
to any other form of mental alienation.* It is immaterial 
that the other party to the transaction was unaware of 
the condition of the person with whom he was dealing. 
The rule, however, admits two qualifications : (1) The 
Roman-Dutch Law, while denying the capacity of an 
insane person to bind himself by contract, recognizes the 
equity of allowing a person who has in good faith expended 
money on behalf of a lunatic to have his expenses recouped.* 
(2) ' Where acts have been done on behalf of an insane 
person by virtue of a power of attorney (or other mandate) 
given by him before he was bereft of his reason, there are 
authorities, such as Digest 46. 3. 32, and Pothier on 
Obligations, sec. 81, from which it might be fairly inferred 
that want of knowledge regarding the principal's change 
of condition would protect persons dealing with the 
agent. The power is revoked by reason of the insanity ; 
but if the power held out the agent as a person with 
whom third parties might contract as such imtil they 
receive notice of the revocation of the authority, their 
knowledge of the insanity would have an important 
bearing on their right to recover upon a contract thus 
made. That would, however, be a very different matter 
from saying that an agent appointed after the insanity 
of the principal could, under the Roman-Dutch Law, 
validly bind such principal.' ® 

The condition of the prodigal after interdiction and 
public notification thereof may correctly be described as 

* Prinsloo's Curators bonis v. Crafford & Prinsloo [1905] T. S. 669. 

2 Gr. 3. 1. 19. 

3 Inst. 3. 19. 8 ; Van Leeuwen, 2. 7. 8. 

* Such as drunkenness. Gr. 3. 14. 5. 

^ Molyneux v. Natal Land and Colonization Co. [1905] A. C. 555 ; in 
appeal from Natal (24 N. L. R. 259), per Sir Henry de Villiers, at 
p. 569. 

^ Ibid, at p. 563. The P. C. judgment in Appeal is reproduced in 
26 N. L. R. 423. 



UNSOUNDNESS OF MIND. PRODIGALITY 105 

a status. Until the interdict has been removed and the 
removal notified he is for most purposes subject to the 
same legal incapacities as a minor, and, like the minor, he 
can without his curator's authority enter into a contract 
which is solely advantageous. 



CHAPTER VII 

JURISTIC PERSONS 

To enter upon a detailed discussion of this topic lies Juristic 
outside our scope. The Romans, more or less consciously, P^"^^"™- 
attributed an artificial personality to four several insti- 
tutions : ■'■ viz. (1) Corporations {corpora-universitates) ; 
(2) Charities {piae causae) ; (3) the Fiscus ; (4) Hereditas 
jacens. These categories, or something like them, reappear 
in the Dutch Law of Holland.^ In the modern law the 
second and the fourth may be ignored ; the second, 
because we no longer attribute any kind of personality 
to an unincorporated charity, the only personality which 
comes in question being that of the trustees in whom the 
trust-property is vested ; ^ the fourth, because it is of little 
or no practical importance. The first and the third remain. 
But the rights of the Fisc, i. e. of the State or Crown, 
may be said to belong rather to public than to private 
law ; while the rights, duties, and powers of corporations 
are, at the present day, most often defined by the terms 
of some general or special statute.* If on the one hand Corpora- 
corporations, being persons, are prima facie capable ^hSr na- 
ture and 

^ Goudsmit, Pandecten-Systeem, vol. i, pp. 61 fi. capacity ; 

2 Fock. And., vol. i, pp. 140 ff. 

* The various organizations known in South Africa as voluntary 
associations seem to fall under the same category. 1 Maasdorp, 
pp. 272-3. But see Committee of the Johannesburg Public Library 
V. Spence (1898) Off. Rep. 84. In Ceylon the English law of Corpora- 
tions was introduced by Ord. No. 22 of 1866. This seems to leave no 
place for the pia causa as a distinct juristic entity. See Arunachalam, 
Digest of the Civil Law of Ceylon, vol. i, pp. 181 S. 

* In Brit. Gui. Ord. No. 17 of 1913 substantially enacts the English 
Companies Act of 1908. 



106 THE LAW OF PERSONS 

of enjoying the same rights and of incurring the same 
liabilities as natural persons, on the other hand this 
general proposition receives a necessary limitation both 
from the mere fact of their artificial personality and 
also from the terms and objects of the incorporation in 
each particular case. Within these limits, a corporation 
may acquire, own, and possess property ; may contract ; 
may sue and be sued in Courts of law. But from the 
nature of the case it can only act through its agents 

^°^t d • Pi'op^rly authorized, whether permanently or for the 
particular work in hand.^ Every corporation derives its 
being from the State, being created by a special act of 
the Legislature (or by the prerogative of the Crown) or 
under the provisions of a general Act, as is the case with 

how dis- most trading companies.^ It ceases to exist : {a) when it 
has been called into existence for a limited time and that 
time has expired ; (b) when all the individuals composing 
it (corporators) are dead — if only one member survives, it 
seems that the corporation still continues in his person ; 
(c) when the members (and in the absence of contrary 
provision the majority of members voting) resolve that 
the corporation shall be dissolved, provided that in the 
particular case such mode of dissolution is not forbidden 
or excluded by law or by the constitution of the corpora- 
tion ; [d) when any other event occurs which the law pre- 
scribes for the dissolution of the corporation in question. 
With these few words on the nature of corporations in 
general we leave the student to pursue the subject, as he 
may find desirable, in the law of the particular Colony 
which concerns him. 

''■ Goudsmit, vol. i, p. 69. 

^ 1 Maasdorp, p. 270 ; Goudsmit, p. 71 : Bene corporatie is dan 
aanwezig, zoodra meerdere personen met een gemeenschappelijk en 
geoorloofd doel zich hebben vereenigd tot het scheppen van een van 
de bijzondere leden afgescheiden rechtspersoon en deze als zoodanig 
van staatswege is erkend, hetzij ten gevolge van eenen algemeenen 
rechtsregel, hetzij telkens door eene bijzondere vergunning. 



APPENDIX A 

FoEM OF Grant of Venia Aetatis in Ceylon 

By His Excellency 

Sir Henry Edward McCallum, Knight Grand Cross of the 

Most distinguished Order of Saint Michael and Saint George, 

Governor and Commander in Chief in and over the Island 

of Ceylon with the Dependencies thereof. 

(Sgd.) Heney McCallum. 

To all to whom These Presents shall come Greeting. 

Whereas A. B. of by his Petition to us dated the 

solicited Letters of Venia Aetatis to supply his want of age 
and to enable him to manage transact and administer his 
affairs and property as fully and effectually to all intents 
and purposes as if he had attained his full age. 

And whereas it appears to us that the said A. B. is capable 
of managing his own affairs. 

Now these presents witness that having taken the said 
Petition into consideration we do hereby grant these our 
Letters of Venia Aetatis to the said A. B. thus supplying his 
want of age as fully and effectually to all intents and pur- 
poses as if he had attained the age of twenty-one years. 

And we do hereby also authorize him the said A. B. to ad- 
minister or cause to be administered all and singular his affairs 
and property and to manage and dispose of such property 
according to the Laws and customs of this country as if he 
had attained the said age of twenty-one years provided that 
he the said A. B. shall not alienate any immovable property 
whatsoever without the sanction of the District Court within 
the Territorial Jurisdiction of which such property shall be 
situated, and except as aforesaid all and singular the acts 
matters and things that the said A. B. shall or may do by 
virtue of these presents shall be considered valid and Legal 
to all intents and purposes without the same being impeached 
or called in question on the ground of minority of the said A. B. 



108 THE LAW OF PERSONS 

And we do hereby require and Command the several Courts 
of Justice in this Island and all subjects of His Majesty the 
King to conform themselves to these Presents all objections 
to the contrary notwithstanding. 

Given under Our Hand and the Public Seal of the Said 
Island on this day of in the year of Our Lord one 

thousand nine Hundred and 

By His Excellency's Command 
Colonial Secretary. 

APPENDIX B 

Form of Ante-ntjptiai contract in use in 
South Africa 

[From The Notarial Practice of South Africa, by 0. H. Van Zyl, p. 201.] 

Know all whom it may concern. 

That on this the day of one thousand nine hundred 
and before me, A. B. of Cape of Good Hope, 

Notary PubUc, by lawful authority, duly sworn and admitted, 
and in the presence of the subscribing witnesses, personally 
came and appeared C. D. of Bachelor, and E. P. 
of Spinster, who declared that whereas a marriage has 

been agreed upon, and is intended to be shortly had and 
solemnized between them, they do, by these presents, contract 
and agree, each with the other, as follows : 

FIRST. — ^That there shall be no commimity of property or 
of profit or loss between the said intended spouses, but that 
he or she respectively retain and possess all his or her estate 
and effects movable or immovable, in possession, reversion, 
expectancy or contingency, as fully and effectually as if the 
said intended marriage did not take place. 

SECOND. — That the one of them shall not be answerable 
for the debts and engagements of the other of them, whether 
contracted before or after the said intended marriage. 

THIRD. — That all inheritances, legacies, gifts, or bequests, 
which may devolve upon, or be left, given or bequeathed to 
either of the said intended spouses, shall be the sole and 
exclusive property of him or her upon whom the same shall 
devolve, or to whom the same may be left, given, or bequeathed. 



APPENDIX B 109 

FOURTH. — That each of the said intended spouses shall 
be at full liberty to dispose of his or her property and effects 
by will, codicil or other testamentary disposition, as he or she 
may think fit, without the hindrance or interference in any 
manner of the other of them. 

FIFTH. — That the marital power which the husband by 
law possesses over the property and the estate of his wife, 
is hereby excluded, and that he is expressly deprived thereof 
over the estate of his intended spouse. 

UPON ALL WHICH conditions and stipulations the 
appearers declared it to be their intention to solemnize the 
said intended marriage, and mutually promised and agreed 
to allow each other the full force and effect hereof under 
obligation of their persons and property according to law. 

THUS DONE, contracted and agreed at aforesaid, 

the day, month, and year first aforewritten, in the presence 
of the subscribing witnesses. 

As witnesses : (Sgd.) 

1. G . H . C . D 

2. I .J . E . F 

Quod Attestor. 

A .B 

Notary Public. 



BOOK II 

THE LAW OF PROPERTY 

The ' Law The Roman institutional writers make the Law of 
of Things . ijjjjj^gg ^hg aecond great division of the Jus Privatum. 
Under this general head they include : (1) Ownership, 
and Modes of Acquisition ; (2) Proprietary rights less than 
ownership, such as Servitudes ; (3) Liheritance, Testa- 
mentary and Intestate ; (4) Obligations arising from 
Contract and from Delict. What the common element is 
which makes these various topics all referable to one great 
branch of law is not at once apparent. Probably it is 
ownership. ' The true point of contact between the 
various res seems in reality to be the fact that whoever 
has- a res is actually or prospectively so much the better 
off.' ^ Accordingly Grotius defines ' things ' as ' what- 
ever, is external to man and in any way useful to man '.^ 
This, however, is not wide enough, for ' thing ' in its legal 
significance includes not merely material things but also 
rights over material things (jura in rem) and rights to 
services (jura in personam). Voet's definition of res as 
' everything of which the Courts take cognizance ' ^ is 
perhaps to be preferred. It is, however, unprofitable to 
labour to define what is scarcely definable. 

In the following pages we shall follow modem practice 
and treat as separate and priacipal divisions of the Law : 
— ^the Law of Property, the Law of Obligations, and the 
Law of Succession. The subject of this Book is the Law 
of Property. 

'- Moyle, Justinian's Institutes, 5th ed., p. 187. 

^ Gr. 2. 1. 3: Zaken noemen wy hier al wat daer is buiten den 
mensch, den mensch eenichsints nut zijnde. 

' Voet (Elem. Jur. 2. 1. 1) : Res est omne id de quo jus dicitur. Jus 
namque dicitur inter personas, de rebus, auxilio actionum. 



THE MEANING OF OWNERSHIP 111 

CHAPTER I 

THE MEANING OP OWNERSHIP 

DoMTNiON or Ownership is the relation protected by Dominion 
law in which a man stands to a material thing which he °hip7° 
is able to : (a) possess, (6) use and enjoy, (c) alienate.^ To 
constitute fuU ownership these rights must be exclusive. 
Where aU these rights are vested in one person to the 
exclusion of all others he is sole owner.^ Where all these 
rights are vested in two or more persons to the exclusion 
of all others they are co-owners. If one or more of these 
rights is vested in one person, the remainder in another or 
others, the ownership of each of such persons is qualified 
or restricted.' Thus, if you have by contract or otherwise Full 
acquired the right to : (a) possess, or (6) use, or (c) alienate, and ^"^^ ^ 
my property, my ownership is, so far, restricted ; and qualified 

,. ■ t ^ J i • I ^ ■ -D ^ ownership. 

ownership is, so tar, vested not m me but m you. Isut 

since to speak of us both as owner would be misleading, 

unless the degree of ownership of each of us were on 

every occasion exactly specified, it is usual to speak of one 

of us only as owner of the thing, and as having a restricted 

ownership in it, while the other is spoken of as owner of 

the right, and as having a right of possession, right of use Jura in re 

and enjoyment, right of alienation, in or over the property 

of another. Hereupon the question arises which of two 

or more such competitors is to be regarded as owner, 

which not as owner. The answer depends not so much 

on the extent of the right or of the profit derived from it 

as on the consideration where the residue of rights remains 

after the deduction from full ownership of some specific 

right or rights of greater or less extent. Thus, if I give 

you a right of way over my field, clearly your right is 

1 Holland, Jurisprudence (11th ed.), p. 205 ; V. d. L. 1. 7. 1. The 
right to possess may be taken to include the jus vindicandi which 
Grotius (2. 3. 1) puts in the forefront in his definition of ownership: 
Eigendom is de toe-behoorte tot een zaeck, waerdoor iemand, schoon 
het bezit niet hebbende, 't zelve vermag rechtelick te bekomen. 

2 Gr. 2. 3. 10. = Gr. 2. 3. 11 ; 2. 33. 1. 



aUena. 



112 THE LAW OF PROPERTY 

specific and limited, mine is imlimited and residuary.'- 
I therefore am owner, you not. The same applies if you 
have the usufruct of property, the residuary rights over 
which are vested in me, or even if you have an inheritable 
right of the kind termed emphyteusis.^ In all these cases 
the dominion remains in me, but in the two last, being 
reduced to a mere shadow, at all events for the time, it is 
merely bare ownership {nvda proprietas), i.e. ownership 
stripped of its most valuable incidents. All the above- 
mentioned rights, it must be noted, whether greater or 
less, are rights of property, and as such protected by 
appropriate remedies against all the world (jura in rem) ; 
but while the residuary right, however reduced, is a right 
of ownership (dominium — jus in re propria), the specific 
rights, however extended, are rights inferior to ownership 
(jura in re aliena). In the following chapters we shall ask : 

Topics of 1. How things are classified in law (chap. ii). 

of Pro-^^ 2. How the ownership of things is acquired (chap. iii). 

perty ' 3. What ownership means and what an owner may and 

may not do with his own (chap. iv). 

4. What is the nature and scope of the various rights 
connected with and derived from ownership under the 
names of Possession (chap, v). Servitude (chap, vi), and 
Hypothec (chap. vii). 



CHAPTER II 

CLASSIFICATION OF THINGS 

How When we speak of the classification of things, we mean 

'Things' ^jjgj], classification according to the legal system which 

eed. we are examining. In the Roman-Dutch system things 

are classified first, according to their relation to persons, 

i.e. in regard to the question whether they are or are not 

1 Gr. 2. 33. 5. 

2 Gr. 2. 33. 1 ; Dig. 6. 3. 1. : Qui in perpetuum f nudum fmendum 
conduxerunt a munioipibus, quamvis non efficiantur domini, &c. 



CLASSIFICATION OP THINGS 113 

objects of ownership ; and secondly, according to their 
nature, as corporeal and incorporeal, movable and immov- 
able.^ The significance of these distinctions will appear 
from the sequel. 

Things as objects of ownership. Justinian dis- Things as 
tinguishes things as (a) res communes, (6) res publicae, ownership, 
(c) res universitatis, {d) res nuUius, (e) res singulorum.^ 
A simpler arrangement would classify things as : 

A. Things legally incapable of ownership {res extra 
commercium). 

B. Things legally capable of ownership {res in commer- 
cio) ; which again are either : 

1. Ownable in law, but unowned in fact {res nullius) ; or 

2. O-wnable in law, and owned in fact ; whether (a) by 
individuals {res singulorum), or (6) by corporations and 
similar juristic persons {res universitatis). 

Things unownable. Things common and things public Things 
are legally incapable of ownership.^ To the class of ablT'^ 
things common, i.e. common to all mankind, are referred 
the air, flowing water, the sea, and the sea shore.* The Res oom- 
class of things public includes harbours,® public rivers or ^'J'res 
lakes ^ and public roads.' The distinction between things publicae. 
common and things public is not always maintained in 
the texts of the Roman Law,* and indeed is of small impor- 
tance. The substantial thing is that none of the above- 
mentioned things can be owned either by individuals 
or by corporations, i.e. they are all extra commercium. 
Thus, the air is insusceptible of ownership ; but it is not The air. 
inconsistent with this that a land-owner has certain rights 
in respect of the air incumbent on his land, so that, e.g. 

1 Gr. 2. 1. 4. 2 ijjst. 2. 1. pr. ; Gr. 2. 1. 16 ; Voet, 1. 8. 1. 

^ Voet, indeed, treats res publicae as res alicfjus soil, populi, but the 
arrangement in the text is preferable. Of. Dig. 41. 1. 14. pr. 

* Inst. 2. 1. 1 ; Dig. 1. 8. 2 ; Gr. 2. 1. 17 and 21 ; Voet, 1. 8. 3. 

5 Inst. 2. 1. 2. « Gr. 2. 1. 25-9 ; Van Leeuwen, 2. 1, 12. 

' ' Herewegen.' Gr. 2. 36. 9 ; Oens. For. 1. 2. 14. 34. 

' Voet, 8. 1.2. Thus in Inst. 2. 1. 1, we read: communia sunt omnium 
haec : aer et aqua profluens et mare et per hoc litora maris. But in 
Dig. 43. 8. 3. pr. Celsus says : Litora, in quae populus Romanus im- 
perium habet, populi Romani esse arbitror. 

1713 I 



114 



THE LAW OF PROPERTY 



The 

seashore. 



Public 
rivers. 



he may require his neighbour not to project his building 
into it.^ 

The seashore is insusceptible of ownership.^ The use 
of it is common to the people of the State, so that every 
member of the community may use it for any lawful 
purpose not inconsistent with the rights of others.^ The 
seashore extends on the land side as far as the highest 
winter flood.* 

Rivers are either public or private. Public rivers 
are such as flow perennially ; ® rivers which do not 
flow perermially are private. But a public river does 
not become private merely from the circumstance of its 
having dried up ia one summer.^ Private rivers are 
matter of private right and call for no further reference 
in this place. Public rivers are publici juris. As such 
they cannot be privately owned, but may be used and 

1 Gr. 2. 1. 23 ; 2. 34. 8. 

^ Grotius (2. 1. 21), apparently in order to reconcile two inconsistent 
texts of the Roman Law (Inst. 2. 1. 1 and 2. 1. 5), makes the shore 
below mid-tide res communis, the shore above mid-tide res pvblica; 
but the distinction is devoid of significance. As to the rights of the 
Crown and of the public in the seashore in the modem law, see 
Appendix A to this Book (infra, p. 182). 

' This in Roman Law included the right of building; and the ground 
occupied became the property of the owner of the fabric, but only for so 
long as the building stood. Dig. 1. 8. 6. pr. ; 41. 1. 14 ; Voet, 1. 8. 3. 

* Inst. 2. 1.3. On the seaside it extends presumably so far as the 
lowest ebb, but this is not stated. 

^ Dig. 43. 12. 1 . 3 : Publicum flumen esse Cassius deftnit, quod perenne 
sit. Does the same criterion apply to a rivus ? In Cape Law : ' Under 
the designation of public streams are included all perennial rivers, 
whether navigable or not, and all streams which, although not large 
enough to be considered as rivers, are yet perennial, and are capable of 
being applied to the common use of the riparian proprietors. Under 
the designation of private streams are included rivers and streams 
which are not perennial, and streamlets which, although perennial, are 
so weak as to be incapable of being applied to common use.' Sir Henry 
de Villiers C. J., in Van Heerden v. Wiese (1880) 1 Buch. A. C. at p. 7. 
In the (Union of South Africa) Irrigation and Conservation of Waters 
Act, 1912, public stream is defined (sec. 2) as ' a natural stream of water 
which, when it flows, flows in a known and defined channel (whether or 
not the channel is dry during any period),, if the water thereof is capable 
of being applied to the common use of the riparian owners for the 
purposes of irrigation ' ; and ' a stream which fulfils these conditions 
in part only of its course shall be deemed to be a public stream as 
regards that part only '. 

« Dig. 43. 12. 1. 2 ; Vermaah v. Palmer (1876) Buch. at p. 28 ; 
Be Wei v. Hiscock (1880) 1 E. D. C. at p. 257. 



CLASSIFICATION OF THINGS 115 

enjoyed by all members of the community for navigation 
or fishing.^ Amongst public rivers the Roman-Dutch 
Law, following the feudal law, distinguished further 
between (1) navigable rivers and their tributaries, (2) other 
public rivers.^ The former class fell under the head of 
regalia,^ with the result that fishing in navigable rivers Regalia. 
and other inland navigable waters was not permitted 
without licence from Government.* Apart from any 
statutory provision this would seem to form part of the 
Roman-Dutch common law, and as such to be presump- 
tively still in force. It does not appear that fishing in 
public non-navigable rivers is subject to the same restric- 
tion. Whatever has been said above as to the rights of 
the public in public rivers must be understood subject to 
the qualification that no person may exercise his right 
improperly to the public detriment. Accordingly an 
interdict lies to prohibit interference with navigation or 
the fiow of the stream.^ 

The phrase res nuUius is used in the Civil Law in three Res 
distinct senses : * ( 1 ) Res communes are said to be res nuUms i^'^i'i^^- 
and humani juris. (2) Sacred, religious, and sanctioned 
things (churches, graveyards, city walls) are res nullius and 

1 Voet, 1. 8. 8. 

^ This distinction appears already in the Roman Law in connexion 
with the topic of leading water. If the public stream was navigable, 
or a tributary of navigable waters it was not permitted to lead water 
from it. But from other public waters in the absence of statutory 
prohibition water might be led. Dig. 43. 12. 2 ; Voet, 1. 8. 8-9 
{ad fin.). 

^ Lib. Feud. II. 56; Gudelin. dejure novissimo, 5. 3. 5; Groen. deleg. 
air. ad Inst. 2. 1. 2 ; Vinnius ad Inst. 2. 1. 2, sec. 3 ; Gr. 2. 1. 25-7 ; 
Huber, Heedensdaegse Rechtsgeleertheyt, 2. 1. 17-19 ; Voet, 1. 8. 9 
{ad fin.) ; 49. 14. 3 ; Heineccius, Elem. Jur. Civ. ad Inst., sees. 325 
and 328; Elem. Jur. German., lib. ii, tit. 1, sec. 16; Leyser, Medi- 
tationes ad Pandedas, vol. i, p. 255 ; Stockmans, Decis. Brabant. 
no. 85 ; Zypaeus, Notitia Jur. Belg., lib. x, sec. de jure fisci ; Bort, 
Tractaet van de Domeynen van Hollandt, Werken, deel 5 ; Van Zurck, 
Codex Batamis, sub voce Domeinen, sec. 6, n. 3 ; Sententien en Gewezen 
Zaken van den Hoogen en Provincialen Baad, nos. 5 and 166 ; Schomaker, 
Consilia et Besponsa Juris, vol. v, cons. Ivii ; Schrassert, Consultatien, 
Advysen en Advertissementen, vol. iii, cons, cxxviii. 

* Gr. 2. 1. 25-7 ; Van Leeuwen, 2. 1. 13 ; but rod-fishing was 
allowed. Gr. 2. I. 28. ^ Dig. 43, tits. 12 and 13. 

» See Kotz6's Van Leeuwen, vol. i, p. 147 (translator's note). 

12 



116 



THE LAW OF PROPERTY 



Things 
ownable. 



Res uni- 

versitatis, 
res singu- 
lorum. 



Things 
according 
to their 
nature : 
corporeal 
and in- 
corporeal; 



divini or quasi divini juris.^ (3) Things ownable, but 
unowned, are res nullius ^ and cede to the first occupant. 
With regard to the second of these classes, which alone 
here concerns us, it is sufficient to say that it has no 
place in Roman-Dutch Law, since all the things comprised 
in it are owned either by corporations or by individuals.^ 

Things ovmable. Passing over things ownable, but 
unowned in fact, of which we shall speak hereafter, we 
come to the last two classes in Justinian's division, viz. 
res universitatis and res singulorum. The first class com- 
prises things owned by towns, villages, and similar 
societies or by corporations.* The second class comprises 
things owned by individuals. This distinction seems to 
be a distinction not of things, but of persons, i.e. according 
as they are : (a) artificial or juristic persons ; or (6) natural 
persons. We may conclude, therefore, that in the modem 
law all things which are not imownable as common, or 
imownable as public, are (except such things as are unowned 
in fact, thoiigh ownable in law) owned either by corpora- 
tions or by individuals.^ 

Things according to their nature. Things are 
further classified according to their nature as corporeal and 
incorporeal.* Corporeal things can be touched, e.g. land, 
houses, cattle, clothes.' Incorporeal things consist in 
a right, as servitude, inheritance, obligations, debts, 
actions, rents.* 



I Voet, 1. 8. 1. ^ Inst. 1. 1. 12 ; Gr. 2. I. 50-1. 

^ Gr. 2. 1. 15 ; Van Leeuwen, 2. 1. 9 ; Green, de leg. abr. ad Inst. 
2. 1. 8 and 9. For South African Law see Cape Tovm and District 
Waterworks Go. v. Elder's Exors. (1890) 8 S. C. 9, where it; was held 
that the fact of burials having taken place in land with the consent of 
the owner did not make that land so sacred or religious as to be inalien- 
able. On the other hand, in the Ceylon case, Pullenayagam v. Fernando 
(1900) 4 N. L. R. 88, Bonser C.J., citing Cens. For. 1. 2. 1. 10, said: 
' By the law of this island a res religiosa is res nullius — ^no one's property.' 
No reference was made to conflicting authorities. 

* Gr. 2. 1. 31 if. ; Voet, 1. 8. 10. 

^ The State (or what comes to the same thing, the fiscus) may, of 
course, own property qua individual. Property so owned is not pro- 
perly speaking res publica. It is in patrimonio populi, not publico 
usui deslinata. " Gr. 2. 1. 9 ; Voet, 1. 8. 11. 

' Gr. 2. 1, 10. 8 (Jr. 2. 1. 14 ; Voet, 1. 8. 18. 



ables. 



CLASSIFICATION OF THINGS 117 

Again, things are divided into immovables and mov- immov- 
ables.^ This is properly a classification of corporeal '>'*'i®¥'d 
things ; but in law most incorporeal things are deemed 
to be comprised under immovables or movables.^ This 
division, therefore, becomes the priacipal basis of classi- 
fication. Where, however, the context requires it, in- 
corporeal things form a third and separate class by 
themselves.* The class of things immovable comprises 
not merely things physically immovable, but also some 
movable and incorporeal things, which are deemed to be 
immovable and are governed by the law of immovables. 
The class of things movable comprises not merely things 
physically movable, but also some incorporeal things 
which are deemed to be movable and are governed by 
the law of movables. Immovable * things and things What 
deemed to be immovable are: (1) land and houses;^ cks'^d^as 

(2) things naturally or artificially annexed to or associated immov- 
with land and houses ® (Under this head fall growing 
trees and fruits ; minerals, stones, &c. ; movables annexed 
to houses even though temporarily removed ; certain 
movables not aimexed to, but enjoyed along with, land 
and houses and destined for perpetual use therewith.) ; ' 

(3) praedial servitudes ; * (4) personal servitudes over 
immovables ; ^ (5) actions in rem directed to the recovery 
of immovables ;^*' (6) annual rents charged on land ; ^^ and 
(semble) (7) in the modem law leases of immovable property 

1 Gr. 2. 1. 10 ; Voet, 1. 8. 11. ^ Voet, 1. 8. 18. 

=* Voet, 1. 8. 29 ; V. d. K. Th. 178-9. 

* Ontilbaer ofte onroerbaer ; res immobiles. 

° Gr. 2. 1. 12. In the Old Dutch Law houses did not fall under the 
head of immovables unless the owner of the house was also the owner 
of the land. Pock. And., vol. i, p. 169. On the other hand, the larger 
kind of ship and all kinds of windmill were deemed immovable. Ibid, 
pp. 170-1. 

" Gr. 2. 1. 13 : Wat aerd-ofte naghel-vast is, word ghehouden als een 
gevolg van het ontilbare ; Voet, 1. 8. 13-14. Van Leeuwen (Gens. 
For. 1. 2. 1. 4) adds title-deeds. For Ceylon see Brodie v. Attorney 
General (1903) 7 N. L. B. 81. 

' Voet, vhi sup. ; as dung, straw, &c. Dig. 19. 1. 17. 2 and 7. 

8 Voet, 1. 8. 20. » Voet, ibid. i» Voet, 1. 8. 21. 

" Voet, 1. 8. 24 ff. ; but semble, only if they are irredeemable. 
Voet, 1. 8. 26 ; Schorer ad Gr. 2. 1. 13 ; V. d. K. Th. 180. 



118 THE LAW OP PROPERTY 

so far as they create rights in rem.^ Mortgages, however, 
even of land, are classed as movables, the mortgage being 
considered as merely accessory to a principal and personal 
obligation, whose nature it, therefore, follows.^ Since, 
however, a mortgage of land constitutes a charge on 
immovable property it would seem more in accordance 
with principle to class it with immovables.* 
What Movable things and things deemed to be movable are : 

things are Q \ g^i movable things except such as are deemed to he 

classed aa^' ° ^ iii 

movables, immovable ; (2) money, and rents accrued due — ^this 

includes money destined to be laid out on land,^ or arising 

from. the sale of land ® ; (3) securities for money (including 

mortgages of immovable property ? ) ; ' (4) personal 

servitudes over movables ; ® (5) actions in personam and 

actions in rem directed to the recovery of movables ; ' 

(6) annual rents not charged on land ; ^° (7) all other 

property capable of classification as movable or immovable 

and not specifically assigned to the class of immovables. 

This includes most incorporeal rights other than such 

as have already been mentioned. 

The im- The legal consequences and therefore also the importance 

of'the""" o^ *^® distinction of things as immovable or movable are 

diatinc- principally the following : " (1) In relation to the Conflict 

tween of Laws immovables generally follow the lex rei sitae, mov- 

immov- ables generally following the lex domicilii.-^^ (2) Immov- 

movables. ables may be affected with real charges, which will adhere 

to them, alienation notwithstanding, movables not.^' 

^ In Roman Law a locatio conductio of land was purely contractual, 
and gave the conductor no real right. In Roman-Dutch Law the 
lessee was recognized as having a proprietary right (Huur gaat voor 
koop). Infra, p. 141. 

2 Voet, 1. 8. 27. 

^ In Cape Colony it was held to be a movable. Eaton v. The 
Registrar of Deeds (1890) 7 S. C. at p. 255. 

* Voet, 1. 8. 22. 5 Voet, 1. 8. 16. ^ Voet, 1. 8. 16. 

' Voet, 1. 8. 27 ; V. d. K. Th. 179-81. « Voet, 1. 8. 20. 

» Voet, 1. 8. 21. According to Van der Keessel [Th. 179) an action 
on a kusting-brief [infra, p. 177) is an immovable. 

^° And not redeemable ; Reditus redimibiles mobilibus annumerantur, 
Schorer ad Gr. 2. 1. 13 ; Voet, 1. 8. 23. " Voet, 1. 8. 30. 

1^ Paul Voet, De mobil. et immdbil. natura, cap. xxiii, sees. 1 and 3. 

1' Op. cit., cap. xix, sec. 8. 



CLASSIFICATION OF THINGS 119 

(3) Immovables require special formalities of alienation or 
hypothecation.^ (4) Special rules apply to the alienation 
of the immovable property of minors.^ (5) The process 
of execution upon immovables differs from the process of 
execution upon movables.* 

The above distinctions, though a useful guide, are not 
invariably conclusive. A thing may, for instance, be 
treated as immovable for some purposes but not for all. 
Thus a mortgage of land, like a sale or other alienation, 
requires to be solemnly executed and registered if it is 
to bind third parties, and so far resembles immovable 
property ; ^ but is, nevertheless, as we have just seen, in 
other respects classed with movables. 



CHAPTER III 

HOW OWNERSHIP IS ACQUIRED 

In this chapter we shall deal with the acquisition and Modes of 
extinction of ownership in corporeal things ; and princi- tfo'^f 
paUy with the legal modes of acquisition of ownership, corporeal 
i.e. the processes which, in law, make a thing mine. The "^^^' 
modes of acquiring and losing ownership of incorporeal 
things will be considered in connexion with the various 
incorporeal things of which we shall speak hereafter. 
The modes of acquisition of corporeal things, i.e. of 
single things {rerum singularum) — for with acquisition per 
universitatem we are not here concerned — are principally 
the following : viz. (1) occupation ; (2) accession ; (3) tra- 
dition or delivery ; (4) prescription. We shall speak 
of these in order. Since the Dutch Law of modes of 
acquisition closely follows the Roman Law, we shall credit 
the reader with a knowledge of the first title of the 
second book of Justinian's Institutes ; and limit ourselves 

^ Op. cit., cap. xix, sees. 3 and 4. ^ Op. cit., eap. xviii, sec. 1. 

^ Op. cit., cap. XX, sec. 7 ; Van der Linden, Verhandeling over de 
JuAicieele Practijcq, book iii, chap, vi ; Nathan, Common Law of South 
Africa, vol. iv, pp. 2208 fi. * Voet, 1. 8. 27. 



120 



THE LAW OF PROPERTY 



Occupa- 
tion. 



Wild 
animals. 



to recalling the heads of classificatioti therem contained, 
and to directing attention to some particulars in which 
the Roman-Dutch Law presents features of peculiar 
interest. 

I. Occupation may be defined as the lawful seizing 
(with the intention of becoming owner) of an unowned 
corporeal thing capable of ownership.-^ This mode of 
acquisition is applicable to : (1) wild beasts, birds, and 
fishes ; ^ (2) enemy goods ; ^ (3) stones, &c., on the sea- 
shore ; * (4) treasure {thesaurus) ; ® (5) islands arising in 
the sea ; ^ (6) abandoned things (res derelictae) ; ' and, 
in short, to every ownable thing, which either never has 
been owned or having once been owned is owned no 
longer.® 

With regard to wild animals, in particular, the Dutch 
Law departed very widely from the law of Rome. It is, 
however, unnecessary to recall the obsolete feudal customs 
and game laws which formed a great part of the old law.^ 
Such matters are now regulated in each of the Colonies 
by local legislation.^" One doubtful point may be men- 
tioned, viz. as to the ownership of tamed animals which 
have lost the animus revertendi.^^ According to several 
authorities they do not thereby revert to their natural 
liberty, but remain the subject of private ownership.^^ 
Falcons and sparrow-hawks are cited as examples. The 
instances given rather suggest that the rule itself belongs 

^ Voet, 41. 1. 2 ; Heinecc. Elem. Jur. Civ. ad Inst., sec. 342. 

2 Inst. 2. 1. 12-16. ^ Inst. 2. 1. 17. * Inst. 2. 1. 18. 

^ Inst. 2. 1. 39. " Inst. 2. 1. 22. ' Inst. 2. 1. 47. 

* Gr. 2. 1. 60. Two more cases of occupation occur in Roman 
Law : viz. (7) the seashore by building upon it (Dig. 1, 8. 6. pr. ; 
41. 1. 14. 1) ; and (8) specification, when the speoificator is not owner 
of the material. Dig. 41. 1. 7. 7. 

° For which see Gr., book ii, chap. 4 ; Van Leeuwen, 2. 3. 2 ff. 
They were swept away at the end of the eighteenth century (1795), 
(V. d. K. Th. 185-7) ; but fresh regulations were found necessary a few 
years later. V. d. L. 1. 7. 2. 

1° See e. g. Ceylon Ord. No. 1 of 1909, which amends and consolidates 
the law relating to the protection of game, wild beasts, birds, and fish. 
Pereira, p. 340. 

11 Inst. 2. 1. 15 ; Dig. 41. 1. 6. 6 ; Gr. 2. 4. 13. 
1^ Gens. For. 1. 2. 3. 7 ; Voet, 41. 1. 7 ; Groen. de leg. abr. ad Inst., 
ubi sup. 



HOW OWNERSHIP IS ACQUIRED 121 

to an order of ideas which has passed away. Things Lost 
which have been lost by their owner remain his property P^P*"^ ^■ 
and cannot be acquired by occupation.^ A person who 
takes them in bad faith commits theft.^ But if after 
proper inquiry the owner is not found, the finder of the 
goods may retain them.^ Wreckage, however, Grotius Wreckage. 
teUs us, ' used from of old to be regarded as the private 
property of the Coimts, but in view of the increase of 
shipping in and about these lands the Count, nobles, and 
towns decreed that every one might recover his ship- 
wrecked and lost property.' * The claim must be made 
within a year and six weeks, and the owner must bear the 
costs of salvage.^ If the wreckage remains imclaimed, it 
belongs not to the finder, but to the fiscus.® 

Treasure trove in Roman Law went, as a rule, half to Treasure, 
the finder, half to the owner of the land where it was 
found,^ and, therefore, if found by the owner of the land, 
wholly to the finder. In Holland it was matter of acute 
controversy whether treasure followed the rules of the 
Civil Law, or went to the Count or public chest. Grotius,* 
who is charged with official bias,® leaves the question 
open. Groenewegen decides against the Treasury ; ^° 
and this view is confirmed by Voet," Vinnius,^^ Van 

1 Voet, 41. 1. 9 ; V. d. K. Th. 189 ; V. d. L. 1. 7. 2. 

2 Inst. 2. 1. 48 (ad fin.) ; Dig. 41. 1. 9. 8 and 41. 1. 58 ; 47. 2. 43-4, 
and 11. 

^ Voet, vM sup. ; unless they are to be said to go to the fisc as bona 
vacantia. Green, de leg. abr. ad Inst. 2. 1. 39, sec. 3 ; Cens. For. 
1. 2. 3. 16. Van der Keessel (Th. 189) says ' cedunt inventori non 
fisco '. Groenewegen (de leg. air. ad Inst. 2. 1. 47) distinguishes lost 
property from res dereliota. The former, he says, goes to the fisc, the 
latter to the finder. 

* Gr. 2. 4. 36 ; Van Leeuwen, 2. 3. 9. 

5 V. d. L. 1. 7. 2 (bergloon). 

° Grotius (tibi sup.) adds ' but may easily be redeemed '. See also 
V. d. K. Th. 193-7. For Ceylon Law see Ord. No. 4 of 1862, sec. 2 ; 

' Inst. 2. 1.39; Dig. 41. 1. 31. 1; 49. 14. 3. 10; Cod. lib. x.tit. 15. 

8 Gr. 2. 4. 38. 

' He was appointed advocate fiscal in 1607 and pensionaris of Rotter- 
dam in 1613. "^ 
^'' Groen. de leg. abr. ad Inst. 2. 1. 39, sec. 4. 
^^ Voet, 41. 1. 11. ^^ Vinnius ad Inst., ubi sup., sec. 9 (in fine). 



122 THE LAW OF PROPERTY 

Leeuwen/ Schorer/ Van der Linden,^ and" Van der 
Keessel.* 

Where several persons are interested in the same land, 
e. g. as dominus and usufructuarius, mortgagor and mort- 
gagee, vendor and purchaser (before delivery), the question 
may well arise who is entitled to the owner's share.® The 
reader will find the matter carefully considered by Voet 
in his commentary on Digest, lib. xli, tit. 1. 
Mines and Mines and precious stones, should, on general principles, 
stones?^ belong to the owners of the soU, and that this was so by 
Dutch Law is the opinion of Voet, expressed, however, 
with no certain voice.® In the modem law such matters 
are commonly regulated by statute.'' 
Accession. II. Accession is a mode of acquiring ownership whereby 
a thing becomes the property of a person by becoming 
physically or intellectually associated with some other 
thing of which such person is already owner.* The thing 
which accedes may either be previously unowned {res 
nullius) or previously owned (res alicujus). When two 
owned things become united by accession it may be 
questioned which of the two accedes to the other, i. e. 
which is principal, which accessory. Grotius says that 
'accession takes place when of two things which are 
joined together the more valuable draws to itself the less 
valuable'.® But the test adopted by Ulpian is better: 
' Whenever we ask which of two things cedes to the other, 
we look to see which is applied to ornament the other ; ' ^^ 
so that, e. g. precious stones adhere to a silver plate in 
which they are set. If this test fails, it will usually be 

' Van Leeuwen, 2. 3. 13 ; Cens. For. 1. 2. 3. 18. 

^ Schorer ad Gr. vbi sup. ^ V. d. L. ubi sup. 

« V. d. K. Th. 198. In Ceylon by Ord. No. 17 of 1887, sec. 2, 'aS. 
treasure trove is the absolute property of His Majesty, and the person 
finding the same is not, as of right, entitled to any portion thereof.' 
Treasure trove is defined by Ord. No. 3 of 1891, sec. 2. 

5 Voet, 41. 1. 12. 

« Voet, 41. 1. 13, and see 49. 14. 3. 

' For Ceylon Law see Ord. No. 5 of 1890 and Pereira, p. 286. 

* Voet, 41. 1; 14 ; Heinecc. Elem. Jur. Civ. ad Inst., sec. 354 ; V. d. L. 
1. 7. 2. 

9 Gr. 2. 9. 1. ^° Dig. 34. 2. 19. 13. 



HOW OWNERSHIP IS ACQUIRED 123 

found that the lesser thing accedes to the greater, the 
less costly to the more costly. 

Accession comprises the following modes of acquisition : Cases of 
viz. (1) increment by bkth of young animals;^ {2)allu- ^°''^^^°'^- 
vion ; ^ (3) accession of part of my neighbour's land to 
mine when detached from his by the force of a river ; * 
(4) island rising in a river ; * (5) change of river-bed ; ® 
(6) specification ; ® (7) industrial attachment (adjunction) ;^ 
(8) confusion of liquids;® (9) planting;® (10) sowing ;^'' 
(11) perception of fruits.^^ In this case, as in that of 
occupation, details wiQ be noticed only so far as the 
Roman-Dutch Law presents features of peculiar interest. 

Alluvion is defined as a ' latent increment, whereby Alluvion, 
something is added to land so slowly that it is impossible 
to say how much is added at any one moment '.^^ By 
the Civil Law land so added by the wash of a river or 
stream belonged to the owner of the land to which it 
adhered.^* 

In the Netherlands the law of alluvion was very tin- 
settled and varied from province to province.^* According 
to one view alluATion being an incident of rivers fell under 
the head of regalia.^* * Certainly in South Holland ', says 
Vinnius, ' no man was formerly found to claim this right 
of increment as his own unless on the ground that the 
right had been granted to him to hold by the same right 
as the Coimt had therein, that is, up to the river.' ^^ On 
principle the claim of prerogative must be limited to 

1 Inst. 2. 1. 19. " Inst. 2. 1. 20. ' Inst. 2. 1. 21. 

« Inst. 2. 1. 22. 5 Inst. 2. 1. 28. « Inst. 2. 1. 25. 

' Inst. 2. 1. 26 (intextura) ; sees. 29 and 30 (inaedificatio) ; see. 33 
(scriptura) ; sec. 34 (pictura). 

8 Inst. 2. 1. 27. » Inst. 2. 1. 31. " Inst. 2. 1. 32. 

" Inst. 2. 1. 35. 12 lugt. 2. 1. 20. 

w Gr. 2. 9. 13 ; Voet, 41. 1. 16. 
" Gr. 2. 9. 18 ff. ; Van Leeuwen, 2. 4. 2. 

" Cens. For. 1. 2. 4. 12 ; Groen. de leg. abr. ad Inst. 2. 1. 23 ; Voet, 
ubi sup. ; Bort, Tractaet van de Domeynen van Hollandt, cap. 5, 
sees. 16 ff. 

i« Vinnius ad Inst. 2. 1. 20, sec. 2, following Gr. 2. 9. 26 ; Van 
Leeuwen, 2. 4. 3 : Tenwaar dat het Land opgedragen was tot de Bivier 
toe, of by den hoop, sonder juiste maat uit te drukken, in welken geval 
den eygenaar mede regt van aanwas heef t. 



124 



THE LAW OF PROPERTY 



Island 
rising in 



Inunda- 
tion. 



navigable public rivers, these alone falling under the head 
of regalia.^ This limitation is not always expressed by the 
Dutch writers, who lived ia a land where all rivers are 
navigable. The claim, whatever its extent, is not ad- 
mitted without qualification by Van Leeuwen,^ or by 
Voet except in the case of agri limitati. Grotius declares 
the claim of the Count in this case to be undoubted.* 
Beyond this he expresses no certain opinion. 

Another case of accession is that of the island rising 
in a river. Here the claim of the Count is admitted by 
the Dutch writers, who consider that the ownership of the 
island follows the ownership of the stream.* The result 
is the same when a navigable pubHc river wholly abandons 
its former course. The deserted river-bed belongs to the 
Crown.® But a partially abandoned river-bed accedes 
to riparian owners provided that they have the right of 
alluvion.® 

If land is covered by flood it does not therefore the 
less continue to belong to its owner, who may resume 
possession, when the flood abates.' In Holland, naturally, 
the legal consequences of inundation were matter of 
serious interest. The rule of the Roman Law, which loft 
inundated lands the property of their original owners, 
might have hindered efforts at reclamation. Accordingly 
the law provided that if the land had continued under 
water for a whole period of ten years, and the owner had 
not given any evident indication of an intention to retain 
possession (which, contrary to the Civil Law,* he might 
do by fishing merely), the land was held to be abandoned 



^ Supra, p. 115. ^ Cens. For. ubi sup. ^ Gr. 2. 9. 25. 

* Voet, 41. 1. 17 ; Vinnius ad Inst. 2. 1. 22, sec. 7 ; Sohorer ad 
Gr. 2. 9. 24 ; Van Leeuwen, 2. 4. 2, where Kotz6 translates ' stromende 
Rivieren ' as ' tidal rivers ' ; sed quaere ? 

° Voet, 41. 1. 18 : Moribus nostris magis est ut alveus fluminis 
desertus &co cedat. The same holds good of the beds of public lakes. 
Ibid. Of. 1 G. P. B. 1252 ; and see Bort, Domeynen van Hollandt, 
cap. 5, sees. 38 fE. 

« Vinnius ad Inst. 2. 1. 23, sec. 3. ' Inst. 2. 1. 24. 

* Dig. 7. 4. 23. The text is not altogether in point, but it is cited in 
this connexion. 



HOW OWNERSHIP IS ACQUIRED 125 

and to go to the Count.^ ' That inundated lands should 
go to the Count ', saya Grotlus, ' is not strange, for the 
seashore and the dry beds of streams also belong to him, 
as was imderstood with regard to the dried beds of the 
river Maas ; and inundated lands become in effect shore or 
river-bed, and if in any way they afterwards become dry 
land they are no longer the old lands, which have disap- 
peared, but new and unowned lands, which, like all other 
unowned things, have from of old been appropriated to 
the Counts.' ^ It is scarcely necessary to add that inter- 
mittent floods do not affect the ownership of property 
without further evidence of abandonment.* In Holland Sand- 
sand-drift was by custom assimilated to flood, so that if 
land had for a period of ten years remained unenclosed 
from the waste and completely covered by drift-sand it 
became by accession the property of the owner of the 
adjoining waste and sand-hills, i.e. usually the property 
of the fiscus.* 

Another small difference between the Roman and the Inaedi- 
Roman-Dutch Law may be noted in connexion with the °''^*^°- 
rights of the owner of material, which another person 
has used for building his own house.^ By a rule, which 
dates from the XII Tables, the last-named person, at all 
events if the material were res furtiva, was answerable to 
the owner for double value {actio de tigno juncto)} In 
Dutch Law the double penalty was not admitted, but the 
owner of the material might recover damages in any case 
in which he might have sued by the Civil Law.' 

Under the head of ' mixed accession ' the commentators Percep- 
speak at length of the * perception ' of fruits, and of ^l°^<^ 
the various rights in this regard of the bona fide 
possessor and the usufructuary.^ The reader will find 

1 Gr. 2. 9. 7 ; Voet, 41. 1. 19; Vinnius ad Inst. 2. 1. 24, sec. 2. 

2 Gr. 2. 9. 9. ^ Gr. 2. 9. 8. 

* Gr. 2. 9. 6 ; Voet, 41. 1. 20. « Inst. 2. 1. 29-30. 

8 Dig. 47. 3. 1 ; 24. 1. 63 ; 6. 1. 23. 6 ; 10. 4. 6. 

' Gr. 2. 10. 7 ; Groen. d'e leg. abr. ad Inst. 2. 1. 29 ; Voet, 47. 3. 2 
{ad fin.). 

^ Voet, 41. 1. 28-33. See also Gr., lib. ii, cap. 6 ; and Van Leeuwen, 
lib. ii, cap. vi ; V. d. K. Th. 205. 



126 



THE LAW OF PROPERTY 



Tradi- 
tion or 
delivery. 



' Ficti- 
tious ' 
tradition. 



the subject fully discussed in Voet's Commentary on 
the Pandects. 

III. Tradition or Delivery ^ considered as a mode of 
acquisition may be described as a transfer of possession 
of a corporeal thing under such circumstances that it 
effects a transfer of ownership.^ Normally, tradition 
implies a physical transference of possession from one 
person to another. But this is not always so. The 
transference may have taken place already for some other 
cause. Thus I have lent you my watch. Now I give it 
you.^ As a rule the ownership in a gift does not pass until 
tradition. But here tradition has preceded and further 
handing-over is imnecessary. This is called ' brevi manu 
traditio '} Conversely, I may agree to remain in posses- 
sion, not as owner any longer, but as borrower, e. g. I give 
you my watch on condition that you are to lend it 
me imtil next week. Technically two transferences of 
possession are necessary, first to perfect the gift, secondly 
to effect the loan. But the two cancel one another, and 
I remain in physical possession, but under a new right. 
This is called ' constitutum possessorium '. An alleged 
agreement of the sort is regarded by the Courts with a good 
deal of suspicion and disfavour. In both of the above 
cases tradition is said to be ' feigned ' or ' fictitious ' ; and 
so it is too when there is no actual handing-over, but a 
thing is placed in my sight or I am placed in sight of it, so 
that I may easily take possession. This is 'longa manu 
traditio '.® Another kind of tradition is said to be symbo- 
lical, e.g. when the keys of a warehouse are handed over 

' Leevering ofte opdrachte. Gr. 2. 6. 2. 

^ Voet, 41. 1. 34. Heineco. Elem. Jur. Civ. ad Inst., sec. 380, defines 
it in the following terms : Traditio est modus adquirendi derivativus, 
quo dominus qui jus et animum alienandi habet rem oorporalem ex 
justa causa in accipientem transfert. 

3 Inst. 2. 1. 44 ; Dig. 41. 1. 9. 5. Cf. Dig. 12. 1. 9. 9 and 12. 1. 10. 

« Gr. 2. 5. 11 ; Van Leeuwen, 2. 7. 2 ; Voet, 41. 1. 34. 

^ Dig. 46. 3. 79 : Pecuniam quam mihi debes aut aliam rem si in 
conspeotu meo ponere te jubeam, efficitur ut et tu statim libereris et 
mea esse incipiat ; nam tum, quod a nullo corporaliter ejus rei possessio 
detinetur, adquisita mihi et quodammodo manu longa tradita existi- 
manda est. 



HOW OV^rNERSHIP IS ACQUIRED 127 

in sight of the building, the building and its contents are 
deemed to pass also.^ But it seems that there is nothing 
symbolical or fictitious about this process, for the posses- 
sion of the keys is the best means of giving the exclusive 
control over and therefore possession of the warehouse 
and its contents.^ In other words, the possessor of the 
keys is prima facie also possessor of the building. 

Tradition will not operate as a means of acquiring Essentials 
ownership (but only as a transfer of possession) unless the "ion as^a 
following conditions concur : ™o<ie of 

1. The transferor must be owner, or at least act by tion. 
authority of the owner, viz. as his servant or agent.* 
Ratification is equivalent to antecedent authority. 

2. The transferor must have the intention of transferring 
ownership * ex justa causa.* Such intention is absent when 
a person transfers his own property in error, supposing 
that it is the property of another person.® 

3. The transferor must be legally competent to alienate.' 
Therefore a minor (generally spealdng) or an interdicted 
prodigal cannot pass ownership by tradition without the 
authority of his tutor or curator.* 

4. The thing transferred must be legally alienable by 
delivery. This rules out things which cannot be owned 

1 Inst. 2. 1. 45 ; Dig. 18. 1. 74 ; 41. 1. 9. 6. 

^ Savigny, Das Becht des Besitzes, book ii, sec. 15 ; C. H. Monro on 
Dig. xli, 1, Appendix 1. 

» Inst. 2. 1. 42-3; Dig. 41. 1. 20. pr. ; Gr. 2. 5. 15 ; Van Leeuwen, 
2. 7. 5 ; Voet, 41. 1. 35. Sometimes the authority is conferred by 
law and not by act of party. ' Accidit aliquando ut qui dominus non 
sit alienandae rei potestatem habeat ' (Inst. 2. 8. pr.), as the pledgee, or 
the guardian as administrator of his ward's property. 

« Inst. 2. 1. 40. 

^ This means that the legal disposition intended is of such a kind 
that the transfer of possession carries with it in law transfer of owner- 
ship. Dig. 41. 1. 31. pr : Nunquam nuda traditio transfert dominium 
sed ita si venditio aut aliqua justa causa praeoesserit propter quam 
traditio sequeretur. 

° Dig. 41. 1. 35 : Nemo errans rem suam amittit. 

' For prohibition of alienation in fraud of creditors see Gr. 2. 5. 3 
{ad fin.) and 4 ; Van Leeuwen, 2. 7. 8-9 ; Voet, lib. xlii, tit. 8 
( actio pauUana); V. d. K. Th. 199-200; and the learned judgment of 
Berwick D.J. (Ceylon) in D. 0. Colombo, 70, 260^1877) Ramanathan, 
1872-6, 7, p. 89. In Ceylon, however, the English Law applies. Ibid. 

8 Supra, pp. 42 and 104. 



128 THE LAW OP PROPERTY 

by individuals, and things which cannot be alienated by 

this process.^ 

5. The transferee must have the intention of becoming 

and must be competent to become ^ owner in consequence 

of the transfer.* 
Transfer Thus far we have spoken of transfer in general, making 
of immov- distinction between movables and immovables. Nor 

a Dies m 

Roman- was any such distinction known to the later Roman Law. 

l"^° Land and movables alike passed by the same simple 
process of delivery. But in Roman-Dutch Law it was 
otherwise. The customs of the Saxons and the Franks 
(with regard to the Frisians we have no information) 
demanded something more than mere delivery to perfect 
a title to land.* La many parts of HoUand the conveyance 
was required by local law to be passed before the Court 
of the district in which the land in question was situated.® 
This excellent practice was made general and obhgatory 

Placaat of by a placaat of the Emperor Charles V of May 10, 1529,® 

■'■ Res incorporales. Dig. 41. 1. 43. 1. 

' If a person fraudulently purchases goods in anticipation of an 
insolvency, which shortly afterwards follows, he is bound to restore 
the goods to the seller. Van Leeuwen, 4. 17. 3 ; V. d. K. Th. 204. 

^ Dig. 44. 7. 55 : In omnihus rebus quae dominium transferunt, 
concurrat oportet affectus ex utraque parte contrahentium. But it 
was not necessary that the transferee should intend to become owner 
by the causa, which was in the contemplation of the transferor. Dig. 
41. 1. 36. But see Dig. 12. 1. 18. The special rules of law relating to 
the transfer of ownership in things sold are considered in a later 
chapter. Infra, p. 251. 

« Fock. And., vol. i, pp. 192 S. 

5 Ibid., p. 194 ; Gr. 2. 5. 13 ; Voet, 41. 1. 38 ; V. d. K. Th. 202 ; 
RecMsg. Obs., pt. 3, no. 32. In the old law the person making cession 
of the land symbolized the transfer by handing over a sod or twig, later 
by handing over or throwing from him a straw {halm). Fock. And., 
vol. i, p. 192. The handing over of the title-deeds sometimes served 
the same purpose. Ibid. This process (called ' overdracht ' or ' trans- 
port ' ) passed the property, though not followed by entry on the land. 
Ibid., p. 195, n. 1. It would seem that, whatever may have been the 
case in Gelderland (Sande, de effestucatione, cap. 2, sec. 18), in Holland 
all such solemnities were in course of time disused. Fock. And., 
vol. i, p. 198. Even the handing over of the deed was not necessary to 
pass the property. V. d. K. Th. 202. The history of land transfer 
in R.-D. L. is considered by the Ceylon S. G. in Appuhami v. Appuhami. 
(1880) 3 S. C. C. 61. 

8 1 G. P. B. 374 ; Gr. 2. 5. 13 ; Cens. For. 1. 2. 7. 6 ; Voet, 41. 1. 38- 
42 ; Groen. de leg. air. ad Inst., lib. iii, cap. xxiii. 



HOW OWNERSHIP IS ACQUIRED 129 



which enacts that ' henceforth no one shall presume to 
sell, charge, convey, alienate, or hypothecate any houses, 
lands, Erven, tithes, Thinse, or other immovable goods 
except before the Judge and in the place where the goods 
are situated'. All sales, &c., which do not comply with 
this provision are to be null and of no effect. An excep- 
tion is permitted in case of feuds, which may be made in 
the Lord's Court according to ancient custom. A later 
placaat of the States of Holland, the first of many such, 
dated December 22, 1598, imposed a duty of the fortieth 
penny (2| per cent.) on all transports^ (half to be paid 
by the seller, half by the purchaser), and the Political 
Ordinance of AprU 1, 1580 (Art. 37) further required 
registration in the land book.^ Failing compliance, the 
transaction is nuU and void.* This continued to be the 
law until the fall of the Dutch Republic, and it remains 
in its essential features the law of land transfers in the 
Roman-Dutch Colonies at the present day.* In South 
Africa the only important change that has taken place 

1 1 G. P. B. 1953 ; Van Leeuwen, 2. 7. 4. 

^ 1 G. P. B. 339. A similar provision is contained in the reissue of 
the Placaat of 1598, dated March 6, 1612. 1 G. P. B. 1957 and 1961. 

3 Art. 13 of the Placaat. 1 G. P. B. 1957. 

* For the practice of land transfer in British Guiana see Appendix B to 
this Book (i?i/ra, p. 184). InCeylon, byOrd. No. 7of 1840, sec. 2, no sale, 
purchase, transfer, assignment, or mortgage of land or other immovable 
property, &c., shall be of force or avail in law, unless the same shall be 
in writing and signed by the party making the same or by some person 
lawfully authorized by him, in the presence of a licensed notary public 
or two or more witnesses present at the same time, and vinless the 
execution of such writing, deed, or instrument be duly attested by such 
notary and witnesses. By Ord. No. 17 of 1852 deeds relating to land 
may be executed before a District Judge or Commissioner of a Court of 
Requests or Justice of the Peace. The property passes not on the 
execution of the deed, but on the delivery of the conveyance to the 
purchaser, and physical tradition of the land is not necessary to perfect 
the purchaser's title {Appuhami v. Appuhami, vhi sup.). By Ord. No. 8 
of 1863, and now by Ord. No. 14 of 1891, a land register office is 
established ; and by sec. 16 all deeds, &c., affecting land are to be 
registered. By sec. 17 an unregistered deed, &c., shall be deemed void 
as against all parties claiming an interest adverse thereto on valuable 
consideration by virtue of any subsequent deed, &c., which shall have 
been duly registered as aforesaid ; provided that . . . nothing herein 
contained shall be deemed to give any greater effect or different con- 
struction to any registered deed, &c., save the priority hereby conferred 
on it. 



Charles V 
of May 10, 
1529. 



The duty 
of the 
40th 
penny. 

Registra- 
tion. 



1713 



K 



130 



THE LAW OF PROPERTY 



The Deeds 
Registry 
in South 
Africa. 



Between 

the 

parties an 

informal 

transfer 

holds 

good. 



Prescrip- 
tion : 



in the 
latest 
Roman 
Law; 



consists in the creation of a special department called 
the Deeds Registry, which supervises aU transfers of 
land and exercises the functions formerly vested in the 
Court.i 

It should be noted that though all transfers which fail 
to comply with the provisions of the Placaats of 1529 and 
1598 are declared to be null and void, the transaction is 
in fact only avoided as against third persons, whether 
purchasers or creditors. As between the parties them- 
selves the contract and the transfer hold good.^ 

IV. Prescription. In the latest Roman Law long- 
continued possession by a non-owner sometimes conferred 
ownership upon the possessor {acquisitive prescription), 
sometimes merely barred the original owner of his remedy 
without making the possessor owner in his stead {extinctive 
prescription). Thus : (1) Possession of movables for 
three years, of immovables for ten to twenty years, if 
originating in just title and accompanied in its inception 
by good faith made the possessor owner. The thing 
possessed must not have been stolen {res furtiva) nor 
possessed by force {res vi possessa). (2) Possession, for 
thirty years, whether of movables or immovables, if 
accompanied in its inception by good faith, though not 
originating in just title, made the possessor owner even of 
a res furtiva but not of a res vi possessa. (3) Possession 
for thirty years though not accompanied ra its iacep- 
tion by good faith and though not originating in just title 
even of res furtiva or of res vi possessa barred the owner 
of his remedy without, however, vesting ownership in 
the possessor.^ Accordingly if the possessor lost posses- 
sion he could not vindicate the property from the new 
possessor, while the original owner on the other hand 
could. 



^ Van Leeuwen, 2. 7. 4. For the law of South Africa herein see 
Harris v. Trustee of Buissinne (1840) 2 Menz. 105 ; Van Aardt v. 
Hartley's Trustees (1845) 2 Menz. 135 ; Melck, Exor. of Burger v. David 
(1840) 3 Menz. 468. ^ Wessels, Hist. R.-D. L., pp. 498-9. 

^ Girard, p. 304 ; Cod. 7. 39. 8. Grotius is not entirely accurate 
in his statement of the law in 2. 7. 2 (last sentence). 



HOW OWNERSHIP IS ACQUIRED 131 

In the Netherlands the whole subject of prescription in the 
was involved in the greatest uncertainty, according as jands^"^" 
local practice approached to or receded from the Civil 
Law.^ The situation was further complicated by the 
presence of two new terms of prescription,^ a shorter 
period of a year and a day (which meant in practice a year 
and six weeks ),^ and a longer period of a third of a century 
(which meant in practice thirty -three years and four 
months and, as some add, three or four days).* 

The first of these was of purely Germanic origin.^ Its The 
application was very limited, and it was available only ^ war ° 
as a defence.® We shall meet with it again in connexion and a 
with the possessory remedy known as ' complaincte '. 
Independently of this it fell out of use after the middle of 
the seventeenth century.' 

The prescription of a third of a centmry — ^in origin, it The 
would seem, merely a variant from the thirty years' altod'of 
prescription of the Theodosian Code* — came eventually a century 
to be the usual term of prescription, at all events for im- mo-rables. 
movable property.® The " Great Privilege ' granted by 
Maria of Burgundy of March 14, 1476^" (Art. 47), fixes 
the period of prescription for immovables (leenen ende 
erjfelijcke goeden) at a third of a century,-^^ and the same 
term is met with in numerous documents of the sixteenth 
century side by side with the shorter and longer periods 
of the Roman Law.^^ After Grotius pronounced in its 
favour it was very generally accepted as the proper 

1 Gr. 2. 7. 6 ; Fook. Aad., vol. ii, pp. 123 fE. 

2 Gr. 2. 7. 6 ff. ^ Voet, 44. 3. 4. 

* Matthaeus, Paroemiae, no. 9, sec. 1. Voet (44. 3. 1) notes: In 
hodiema praesoriptione longissimi temporis ant trientis seculi diem 
ultimum coeptum non haberi pro complete recta defenditur. 
^ Fock. And., vol. ii, p. 124. 

6 Ibid. ; Gr. 2. 7. 7. ' V. d. K. Th. 208. 

8 Cod. Theodos., lib. iv, tit. 14 ; Cod. 7. 39. 3 (a. d. 424) ; Van do 
Spiegel, Oorsprong en hisforie der Vaderlandsche Rechten, pp. 129-30. 

' Gr. 2. 7. 8 ; Groen. de leg. dbr. ad Cod. lib. vii, tit. 39 ; Van 
Leeuwen, 2. 8. 5 ; Cens. For. 1. 2. 10. 11. 
w 2 G. P. B. 671. 
11 See Gr. 2. 7. 8. 

1^ Groningen followed the law of Justinian — three years for movables, 
ten to twenty for immovables. Fock. And., vol. ii, p. 125. 

K2 



132 THE LAW OF PROPERTY 

term of prescription for immovables.^ With regard to 

movables Grotius expresses no final opinion.^ According 

to a decision of the Court of Holland of 1637 cited by 

Loenius,* prescription is completed in respect of immovable 

property and annual rents by the third of a century. 

Groenewegen, whose book was pubhshed in 1649, says 

distinctly that the period of prescription is a third of 

The a century for immovables, but thirty years for movables.* 

th"t"^ °^ '^^^^ view, endorsed by Van Leeuwen* and Van der Keessel,^ 

years for outweighs the inchnation of Voef and the opinions of 

moTables. gchorer » and Van der Linden" in favour of a term of 

a third of a century for both kinds of property. 
Presorip- At the Cape the period of thirty years for immovable 
thTcape. property is fixed by statute and for movables by the 
common law, whenever there is no express statutory 
provision to the contrary.^" 

1 V. d. K. Th. 206. 

^ He seems to imply a uniform term of one third of a century for 
immovables and movables alike. So, at least, he is understood by 
Groenewegen {ad Cod. 7. 39, sec. 2), Van Leeuwen (2. 8. 5 ; Gens. For. 
1. 2. 10. 11), and Voet (44. 3. 8). But Boel ad Loen. {Decis. & Observ. 
at p. 603) thinks it ' clear as daylight ' that this was not his meaning. 

* Loen. Decis., no. 76, p. 500. 

* Groen. de leg. ahr. ad Cod. 7. 39, sec. 3. 

^ Van Leeuwen, vhi sup. ^ V. d. K. Th. 206. 

' Voet, 44. 3. 8. » Schorer ad Grot. 2. 7 (rubric). 

9 V. d. L. 1. 1.2 (ad fin.). 

w Cape, Act 7 of 1865, sec. 106 ; 2 Maasdorp, p. 80. In Ceylon, by 
Ord. No. 22 of 1871, sec. 3, ' proof of the undisturbed and uninterrupted 
possession by a defendant in any action, or by those under whom he 
claims, of lands or immovable property, by a title adverse to or inde- 
pendent of that of the claimant or plaintiff in such action (that is to 
say, a possession unaccompanied by payment of rent or produce, or 
performance of service or duty, or by any other act by the possessor, 
from which an acknowledgement of a right existing in another person 
would fairly and naturally be inferred) for ten years previous to the 
bringing of such action, shall entitle the defendant to a decree in his 
favour with costs. And in like manner when any plaintiff shall bring 
his action or any third party shall intervene in any action for the 
purpose of being quieted in his possession of lands or other immovable 
property, or to prevent encroachment or usurpation thereof, or to 
establish his claim in any other manner to such land or other property, 
proof of such undisturbed and uninterrupted possession, as hereinbefore 
explained, by such plaintiff or intervenient, or by those under whom 
he claims shall entitle such plaintiff or intervenient to a decree in his 
favour with costs. Provided that the said period of ten years shall only 



HOW OWNERSHIP IS ACQUIRED 133 

Some other points in the law of prescription are less Good 
doubtful. Contrary to the Roman Law the Roman-Dutch ^^^^^l^ 
Law requires neither good faith nor just title.^ Even unneces- 
stolen goods may be prescribed. The sole question is ^^^^' 
whether the possession or quasi-possession of the person 
claiming by prescription has been quiet and continuous, 
undisturbed by the original owner and without recognition 
of his right.^ Disturbance is either (1) natural, i.e. physi- But pre- 
cal, or (2) judicial, i.e. by instituting proceedings to enforce ^ug^tfj^T 
an adverse claim. The possession of the predecessor in undis- 
title, if adverse to the original owner, may be reckoned *^^^ ' 
in calculating the period of prescription {conjunctio tem- 
porum) without any distinction of good or bad faith in 
either party.* Prescription generally runs against the Against 
Crown, provided that the property claimed by this mode ^ription* 
of acquisition is such as the Crown might have ahenated i'"'^^- 
by grant.* Time does not run against minors nor, says 
Voet, against madmen and other such persons, who are 
deemed to be minors, and are subjected to guardianship ; 
nor against persons who are absent because of war or on 
other pubhc business ; * nor against those who are dis- 
quahfied from asserting their rights ; and therefore not 
against a fidei-commissary whose right is suspended by 
a condition, if the fiduciary ahenates the property subject 
to the trust before the condition is fulfilled ; ® nor against 
a married woman whose husband has improperly ahenated 

begin to run against parties claiming estates in remainder or reversion 
from the time when the parties so claiming acquired a right of possession 
to the property in dispute.' ' The effect of the Ordinance is to sweep 
away all the Roman-Dutch Law relating to the acquisition of immovable 
property by prescription except as regards the property of the Crown.' 
Pereira, p. 384. In Brit. Gui. the period of prescription for immov- 
ables is the third of a century. Ouyadeen v. Ferguson (1905) Brit. Gui. 
Off. Gaz., vol. xxi, p. 782. There is no decision as to prescription of 
movables [G.]. 

1 Anton. Matthaeus, Paroemiae, no. 9, sees. 2-3 ; V. d. K. Th. 207. 

2 Voet, 44. 3. 9. 
" Voet, ubi sup. 

^ Voet, 44. 3. 11. 

^ Voet, 44. 3. 9 ; citing Anton. Matthaeus, Paroemiae, no. 9, sees. 
22—3. 
8 See De Jager v. Scheepers (1880) Foord, 120. 



134 



THE LAW OF PROPERTY 



Effect of 
prescrip- 
tion. 



Limita- 
tion of 
actions. 



dotal property.^ Schorer, however, states and perhaps 
endorses a contrary view : 

' It has been advised that against this prescription of 
thirty years avails neither the frailty of sex, nor mahce, 
nor absence, but that minority ^ alone is exempted from 
this penalty, for it is a rule of law that during minority 
prescription is dormant ; so that even ignorance is not 
reheved by restitutio in integrum.' 

The effect of prescription is to vest the ownership of 
the property in question in the possessor, so that he can 
vindicate it, if he subsequently loses possession, from the 
original owner as well as from third parties. 

From the acquisitive prescription above described the 
reader must distinguish the law as to the limitation of 
actions, which merely bars a plaintiff of his remedy.* 
This applies not only to claims for property, but also to 
aU actions whatsoever. The hmit of time is generally 
thirty years, but in the case of actions to recover immov- 
able property and rents ' charged on land a third of 
a century.® In relation to property therefore the same 
period bars the remedy and transfers the right. In other 
cases the rule is subject to numerous exceptions, e.g. 
restitution on the ground of minority is barred after f our 



1 Voet, 44. 3. 11. 

^ ' Pupillarem aetatem ' ; but this must be taken to include all 
minors. V. d. K. Th. 210. 

^ Schorer ad Grot. 2. 7. 9. Decker (ad Van Leeuwen, 2. 8. 12) says 
that even minors are not relieved from the operation of prescription 
ipso jure, but only by way of restitutio in integrum. For Cape Law 
see Act No. 6, 1861, sec. 6. 

* Grotius (3. 46. 2) and Voet (44. 3. 10) say that moribus obligations 
are extinguished ijpsojwe by lapse of time. Sed quaere. See 4 Maasdorp, 
p. 158 ; and S. A. L. J. (1912), vol. xxix, p. 159. 

^ With regard to rents the books speak with uncertain voice. See 
Loen. Decia., Cas. 76 ; Van Leeuwen, 2. 8. 7 ff. ; V. d. K. Th. 208. 
The limitation in the text seems to follow from the fact that rents if 
charged on land are classed with immovable property, otherwise not. 
Supra, p. 117. 

° Grotius (3. 46. 3) says that the usual term of prescription is a third 
of a century ; but Groenewegen in his note ad loc. says that in the 
opinion of many jurists the Roman term of thirty years applies to 
movable goods and to real and personal actions. See also Schorer's 
note ad loc, and Bynkershoek, Quaest. Jur. Priv., lib. ii, cap. xv. 



HOW OWNERSHIP IS ACQUIRED 135 

years,^the actio injuriarum after one,^ and actions by advo- 
cates, attorneys, servants, and merchants for salary and 
arrears after two years. This last limitation is contained 
in the Perpetual Edict of Charles V of October 4, 1540, 
Art. 16,* and a subsequent declaration of February 14, 
1549; but this provision. Van Leeuwen says, seems to have 
become obsolete through disuse.* 



CHAPTER IV 

OWNERSHIP 

We have already spoken of the nature of ownership, Subject- 
and of the distinction between f uU. ownership and the ^ ^^ ° 
limited rights carved out of another's ownership, which chapter. 
are commonly known as jura in re aliena. In the present 
chapter we shall speak of the incidents of ownership and 
more particularly of the kinds of ownership in land. 

Section" I. The Incidents of Ownership in 
General 

It is a common saying that a man may do what he The 
wiU with his own. The proverb has an element of truth. ^"0^^*^. 
Ownership comprises rights of possession,^ user, and ship in 
alienation ; and all these rights are Umited only by the s^^^^^ ■ 
duty which the law imposes upon all to have due regard 
to the rights of each according to the maxim ' male jure 
nostro uti non debemus '. 

^ Supra, p. 43. 

2 Cod. 9. 35. 5. This does not apply to the action for real injuries 
founded on the lex Cornelia, which was ' perpetual '. Voet, 47. 10. 21. 

3 1 G. P. B. 319. Infra, p. 242. 

* Van Leeuwen, 2. 8. 11. On this point there was much difference 
of opinion. V. d. K. Th. 876. For the statutory law as to prescription 
of actions, see Cape Act No. 6 of 1861 ; Transvaal Act No. 26 of 
1908 ; Ceylon Ord. No. 22 of 1871 (Pereira, pp. 383 ff.). 

5 And by consequence of recovering the thing owned from a non- 
owner {jus vindicandi). V. d. K. Th. 183. For some possible, but 
doubtful, exceptions to the generality of this principle, see V. d. K 
Th. 184, and below, pp. 163, 251-2. 



136 THE LAW OF PROPERTY 

What ia But what is ' male uti ' ? and what use of land is 

ownOT°s'^" regarded in law as an injury to another ? It is not possible 

duty to- to give a general answer except that a landowner may do 

nelglf-^^ what he pleases so long as he does nothing which can be 

bour? referred to a recognized head of legal wrong. Thus, it 

may be very annoying to you that I should build a house 

with windows looking out over your garden, but apart 

from servitude you have no lawful ground of complaint 

or legal remedy. Again, if I sink a well in my field, the 

result may be that, owing to the interception of percolating 

underground water, the well in yom: field will run dry. 

But you are without redress.^ It would be otherwise if 

I interfered with the flow of a defined underground stream.^ 

What then, apart from interruption of servitude, are 

the wrongs for which a landowner may obtain redress 

from his neighbour ? or, to repeat the question in other 

words, what are the duties which one landowner owes 

to an adjoining landowner ? They are mainly three : viz. 

(1) to respect his possession ; (2) not to interfere wrongfully 

with his enjoyment ; (3) not to cause a subsidence of his 

land or interrupt the accustomed flow of a stream. 

1. To (1) I must respect my neighbour's possession. Thus, 

respect his J niust not deprive him of possession or wrongfully exclude 

him from the possession of what belongs to him. Further, 

I must not interfere with his possession. This I should 

do, for example, if I constructed a building on my land 

so that some part of it projected above my neighbour's 

land, for this would be an interference with his right to 

bmld as high as he pleases upon his own land.' A like 

wrong is committed if I allow my trees to spread their 

branches over the boundary. 

' By the common law every one may build or plant 
trees on his own land, even though his neighbour's fight 

1 Dig. 39. 2. 24. 12 ; Cod. 3. 34. 8 ; Gr. 2. 34. 27 ; Van Leeuwen, 
2. 20. 16 ; Voet, 8. 3. 6 ; Strvben v. Cape Town Waterworks Co. (1892) 
9 S. C. 68 ; Smith v. Smith (1914) S. A. L. J., vol. xxxi, p. 317 ; pro- 
vided that I acted sine animo nocendi vioino. Voet, 39. 3. 4. 

2 2 Maasdorp, p. 103 ; Juta, Water Rights, pp. 5 ff. 

3 Gr. 2. 1. 23 and 2. 34, sees. 4, 8, 11, 19, 23. ' Quia ejus est caelum 
cujus est solum.' Sohorer ad Gr. 2. 1. 23. 



OWNERSHIP 137 

or view may be obstructed thereby ; but no one may by 
that law allow his trees to overhang the ground of a neigh- 
bour ; and the latter may cause whatever so overhangs 
his ground to be cut down,^ and if he does not do so, he 
is entitled to the fruits which hang over.' ^ 

(2) I must not wrongfully interfere with my neighbour's 2. Not to 
enjoyment. This is a topic to which the Roman and ^^^^^^^ 
Roman-Dutch lawyers give Httle attention. In the faUy 
modern law, which is largely derived from EngHsh prece- ^joy-"^ 
dents, the Cotirt will interfere by injunction to prohibit ™^°*- 
any disturbance of my neighbour's enjoyment which 
amounts to a nuisance. What this is depends upon the 
circumstances and scarcely admits of definition. The 

safest guide in such matters is to be found not in any 
attempted generaUzation of principle, but in the practice 
of the Courts in dealing with other cases similar in charac- 
ter. Another test is afforded by the law of servitudes. 
An interference with enjoyment which can be justified 
as a servitude wiU often, in the absence of servitude, be 
found to constitute a nuisance.^ 

(3) I must not cause a subsidence of my neighbour's 3. Not to 
land or interrupt the accustomed fiow of a stream which afje^ge^r 
passes from my land to his. As regards the first of these interrupt 
duties the law is, that, though I am free to dig in my own gt°^am. 
land I must not do so in such a way as to let down 

my neighbour's soil. In other words, he has a right to 
lateral support of his soil by mine. This right exists jure 
naturae without any servitude. Whether, apart from 

'^ Voet, lib. xliii, tit. 27. As to the ownership of the severed 
branches see De Villiers v. & Sullivan (1883) 2. S. C. 251. 

2 Gr. 2. 34. 21 ; Voet, lib. xliii, tit. 28. Secus jure civili. Groen. 
de leg. abr. ad I5ig., lib. xlvii, tit. 28. Neither Groenewegen nor 
Voet bears out the statement in the text that the neighbour may take 
hanging fruits. They both speak of fructus decidentes. Further, there 
is no proof of a general custom of the kind alleged. Voet merely 
says ' ex moribus multorum locorum '. See Rechtsg. Obs., pt. 3. no. 5. 

In like manner I may not, apart from servitude, allow the drip 
from my eaves to fall on another's land (Gr. 2. 34. 11) nor discharge 
an artificial stream of water over another's land. Ibid., sec. 16. 

* As to the application of the principle of Bylands v. Fletcher (1868) 
L. R. 3 H. L. 330 to Eoman-Dutch Law see below, p. 278. 



138 



THE LAW OP PROPERTY 



Water- 
rights. 



When 
a private 
stream 
becomes 
public. 



servitude, he has a similar right of support for buildings is 
doubtful.^ 

With respect to the flow of a stream whether above 
or under ground ^ the lower riparian proprietor is 
entitled to have the stream reach his land unimpaired in 
quantity, subject only to the upper proprietor's right 
of reasonable user and enjoyment. This is construed, at 
all events in the Cape Province, to mean that the upper 
proprietor : (1) may take as much water as is reasonably 
necessary for the support of animal Ufe upon Ms pro- 
perty, and do so even, if need be, to the exhaustion of the 
stream ; (2) may take water for agricultural purposes, but 
only so far as he can do so with due regard to the rights 
of lower proprietors to do the same ; and (3) subject 
thereto and upon like conditions may take water for 
mechanical and industrial purposes as well.* 

These rules, it must be remembered, apply only to 
pubhc streams. The owner of a private stream, as 
pointed out above, may deal with it as he pleases. 

If a stream rises in a man's own land, it is in its inception 
private and may be dealt with as such ; but if it has con- 
tinued to flow in a defined channel for a considerable 
length of time (which in South Africa is taken to be thirty 
years) over adjoining land, the stream becomes pubhc and 
the usual incidents of pubhc streams attach to it.* 

Just as a lower proprietor has rights against an upper 
proprietor, so he owes him duties. He must not do any- 
thing to interrupt the flow of the stream from the upper 
ground, or otherwise injure the upper proprietor's user 
of the stream. 

With regard to rain-water the proprietor's rights are 
absolute. Apart from servitude he may dispose of it as he 
pleases.® 



^ 2 Maasdorp, p. 98. 

" 2 Maasdorp, pp. 112 ff. 



(Serrible) 2 Maasdorp, p. 103. 



* Van Breda v. Silberbauer (1869) L. R. 3 P. C. 84; The Commissioners 
of French Hoek v. Hugo (1885) 10 App. Ca. 336 ; Vermaak v. Palmer 
(1876) Buch. 25 ; Juta, Water Rights, pp. 41 ff. ; 2 Maasdorp, pp. 106 ff. 

= Gr. 2. 34. 14. 



OWNERSHIP 139 

Section II. The Kinds oi? Ownership oe Land 

In this section we shall speak of what is commonly called in what 
land tenure, i.e. of the different kinds of land-ownership ^'fys'land 
recognized by law. In England all land is held by feudal may be 
tenure mediately of immediately of the King, who is 
' Sovereign Lord or Lord Paramount either mediate or 
immediate, of all and every parcel of land within the 
Realm '} In HoUand, feuds {leen-goed) existed side by Feudal 
side with lands held allodiaUy {eigen-goed). Feudal lands ^S'^^jj^j 
were governed by the rules of the feudal law {leenrecht), owner- 
which was administered by feudal Courts (leen-gerechten). HoUand. 
AUodial lands were owned according to the ordinary 
principles of the common law and subject to the jurisdic- 
tion of the ordinary Courts. The principal difference 
between these two kinds of land-ownership is that feuds 
are always held by the landowner as tenant of another, 
while allodial property is owned, Hke movables, by an 
absolute and independent title. 

In Dutch law feuds (leenen) were always held on con- Leenen. 
dition of mihtary service.^ This continued in theory to 
be the case until the end of the Republic, except where the 
land had been allodiaHzed.' There was nothing in Dutch 
law precisely corresponding to the English tenure in free 
and common socage. But there existed from ancient 
times an institution which in many respects approached 
to socage tenure, though it exhibited also analogies with 
copyhold and leasehold. This was variously known as 
tynsrecht or cynsrecht (census right) or erfpacht (hereditary Cynsrecht 
lease), erfhuur (hereditary hire), and by other hke names.* "gQ*^"'*" 

1 Co. Litt. 65, a ; 2 Bl. Comm. 53. tenure. 

2 Fock. And., vol. i, pp. 309-10. 

* Ibid. The duty of military service was, however, disused by the 
seventeenth century. Gr. 2. 41. 44 ; Van Leeuwen, 2. 14. 13. 

* Fock. And., vol. i, p. 319 : Tijnsrecht, dat is het reoht om een 
onroerend goed te hebben en te genieten tegen betaling van een jaar- 
lijksch bedrag en somtijds het verrichten van zekere diensten. Grotius 
distinguishes erfpachtrecht (book ii, chap. 40) from cijnsrecht (book ii, 
chap. xlvi). Van Leeuwen includes under the general term Erfpachtrecht, 
'Emphyteusis, G3msregt, Pagten metten Houde (see Fock. And., vol. i, 
p. 326), Tynsregt en diergelyke meer.' Fockema Andreae (p. 320) says : 



140 THE LAW OF PROPERTY 

It was a grant of land for an indefinite or limited period 
subject to the payment of an annual rent {cyns — census). 
Originally, the grantor was regarded as owner of the land, 
the grantee merely as having a jus in re aliena. Later, 
the position was reversed. The grantee became the owner, 
with free rights of aUenation inter vivos or by will, in 
default of which the land passed to his heirs by intestate 
succession.^ The grantor, on the other hand, was now 
considered to have merely a rent-charge upon the land, 
which the grantee might, as a rule, redeem. On the other 
hand, the grantee must maintain the land, i. e. was hable 
for waste, and if the rent feU into arrear for a period 
which, under romanist influences, was often fixed at three 
years, or in case of other failure of duty, he incurred a 
forfeiture.^ This mode of land tenure was not identical 
Not the with the emphyteusis of the Roman Law, nor, it seems, 
emphy- derived from it. There can be no doubt, however, that 
teusis. it was influenced in its development by principles derived 
from the Roman Law. Even Grotius,^ still more the 
distinctively romanist writers of the seventeenth and 
eighteenth centuries, fail to distinguish between the native 
and the exotic institution.* 
Villein In addition to the above-mentioned modes of land-hold- 

Holland, iiig. villein tenure, which was always associated with 
villein status, played an important part in the old law. 
It did not survive the revolutionary influences of the end 
of the eighteenth century.^ This institution, therefore, 
however interesting historically, need not detain us, since 
it has no counterpart in the modern law. 

' Een vast versohil in den aard van het recht wijzen deze namen niet 
aan.' When an owner sold land reserving a rent the land was termed 
oud-eigen, and the rent might by agreement be made irredeemable. 
Gr. 3. 14. 14 ; Cens. For. 1. 2. 17. 1. 

^ It tended to become, and in the sixteenth century usually was, 
hereditary and perpetual. Fock. And., vol. i, p. 325. Grotius (2. 40. 2) 
describes erfpacht-recht as 'erfEelicke tocht', and Van Leeuwen says 
(2. 10. 1) ' Erfpagt-regt is een erfelyk onversterfelyk regt ', but recog- 
nizes also another sort of erfpagt-regt, which came to an end if not 
periodically renewed. Cf. Gr. 2. 40. 4^-5. 

2 But see V. d. K. Th. 383. ^ Gr. 2. 40. 2. 

* E. g. Van Leeuwen, 2. 10. 2. ^ Eook. And., vol. i, p. 52. 



OWNERSHIP 141 

The life-interest in land {Ujf-tocht — usufruct) will be con- Usufruct. 
sidered in a later chapter. 

It remains to speak of the contract of hire of land, so Lease of 
far as it affects the proprietary rights of the parties. In *" ' 
the older Germanic Law, as in the Civil and in the Enghsh 
Law, a lease of land had no such consequence. It was 
purely contractual in character, and gave no right against 
third parties, nor did the benefit of a lease pass on death 
to the heirs of the lessee. Thus, if the lessor sold the land, 
the purchaser, though aware of the lease, was not bound in early 
by it. This is expressed by the proverbial saying, Koop J^JgYv^ 
breekt huur (Sale breaks hire). The reason was that contrao- 
leases, being mere contracts, required no solemnity and "'^ ' 
consequently did not transfer any proprietary interest.^ breekt 
In later times the rule was reversed, Breekt koop geen huur '^'^^'^• 
(Sale breaks no hire), Huur goat voor koop (Hire goes before But, later, 
sale) ; with the result that the hirer could make good his 
right to the land against any third person to whom his right. 
landlord might have sold it. In this sense the law is laid Huurgaat 

voor 

down by Grotius,^ with the quahfication, however, that koop. 
a lessee of land has no such right unless his lease is in Must a 
writing,^ passed before the Schepenen {coram lege loci) or jan^^bein 
under the hand of the lessor.* Groenewegen goes further, writing ? 
for besides regarding writing as of the essence of all leases 
of lands ^ (but not of houses),^ he requires further that 

^ I.e. did not create any right in rem. According to some authorities 
this continued to form part of the law of Holland. Thus Schorer {ad 
Gr. 3. 19. 3) writes : Hodie nullum licet in longum tempus facta sit 
locatio tribuat jus in re. 

2 Gr. 2. 44. 9 ; Van Leeuwen, 4. 21. 7 ; and see Voet, 19. 2. 17. 

' Gr. ubi sup. and 3. 19. 3. 

* ' By pubhjcke instrumenten ofte d' eygen handt van den Eygenaar ' 
is the language of the Pol. Ord. 1580 (Art. 31), which Grotius purports 
to follow. See next note. His own words (3. 19. 3) are: 'Zonderschepen- 
kennisse ofte schrift by den eighenaer gheteickent.' 

^ Groen. de leg. ahr.'ad Cod. 4. 65. 24, sec. 1 ; and notes 6-6 ad Gr. 
3. 19. 3. As authorities for this proposition, reference is made to the 
Handvest of Philip Duke of Burgundy of June 11, 1452 (3 G. P. B. 
586), the Placaat of Charles V of January 22, 1515 (1 G. P. B. 363), and 
the Pol. Ord. 1580, Art. 31 (1 G. P. B. 337). These enactments, how- 
ever, relate not to original leases but to nahuyr. They are therefore no 
authority for the proposition advanced in the text. See V. d. K. Th. 672. 

^ Groen. de leg. air. ad Cod. 4. 65. 24, sec. 2, non obstante Holl. Cons., 



conferred 
a real 



142 THE LAW OF PROPERTY 

a lease ad longum tempus, i.e. for ten years and upwards, 

should be executed coram lege loci, if it is to prevail against 

a purchaser.^ The reason is that a lease ad longum 

tempus is in effect an alienation and demands the same 

Groene- solemnity of execution.^ According to Groenewegen, 

^ttement tl^^n : (1) a short lease of land, if in writing, holds good 

of the law against a purchaser ; (2) a short lease of houses holds 

of IpSiSGS 

good against a purchaser even without writing ; (3) a long 
lease holds against a purchaser if executed coram lege loci, 
Leases in otherwise not.* In South Africa, with some statutory 
^^^\ exceptions, the vaUdity of a lease as between the parties 
(and their heirs) is independent of the presence or absence 
of writing, and a lease which is good between the parties 
is also good as against persons claiming through the lessor 
by lucrative title. As regards purchasers and creditors 
the law is otherwise. A short lease is absolutely valid 
against them ; * a long lease only if registered against 

vol. i, no. 262. Van der Keessel {Th. 670) agrees. Voet, however 
(19. 2. 2), and Decker (ad Van Leeuwen, 4. 21. 3) consider that the Edict 
of the States of Holland and West Friesland of April 3, 1677 (3 G. P. B. 
1037) settled the law in the sense that leases of both lands and houses 
must be in writing. Van der Linden (1. 15. 11), though relying on 
different statutes, agrees with this statement of the law. 

1 Ad Cod. 4. 65. 9. 

^ In looatione enim longi temporis eadem solemnitas intervenire 
debet quae in alienatione, cujus naturam induit atque sortitur ex com- 
muni atque inveterata Doctorum sententia. Voet (19. 2. 1) expresses 
with some hesitation the same opinion. Van Leeuwen (4. 21. 9), equally 
with hesitation, pronounces the other way. 

^ Groen. ad Gr. 3. 19. 9, where he says : ' It being well imderstood 
that in no case can immovable property be let for more than ten years 
unless the written lease (huurcedulle) is passed before the Court of the 
place where the property is situated.' At the Cape leases in longum 
tempus must be executed in writing and registered in the office of the 
Registrar of Deeds. 3 Maasdorp, p. 201. In Ceylon by Ord. No. 7 of 
1840, sec. 2, 'no contract for establishing any security, interest, or 
encumbrance afiecting land or other immovable property, other than 
a lease at will or for any period not exceeding one month, is of force 
or avail in law unless the same is in writing and signed by the party 
making the same or by some person lawfully authorized by him, in 
the presence of a licensed notary public and two or more witnesses 
present at the same time, and unless the execution of such writing is 
duly attested by such notary and witnesses.' The validity of leases at 
will or for a period not exceeding one month entered into verbally has 
not been questioned in any case. Pereira, p. 667. 

* Green v. Griffiths (1886), 4 S. C. 346. 



OWNERSHIP 



143 



the title, or if the purchase was made or the credit given 
with knowledge of the lease. So the law has been laid down 
for the Cape Province.^ In the other provinces it is sub- 
stantially the same, subject to some statutory variations. 
In the Orange Free State a long lease is understood to be 
a lease for more than twenty-five years.^ In Natal any 
contract to grant or take a lease or sublease of immovable 
property for a period exceeding two years from the time of 
making such contract or for the cession of any such lease or 
sublease having then more than two years to run, must, 
unless there has been part performance, be evidenced 
by writing.' In the Transvaal a lease for ten years or 
upwards has no effect whatever, even between the parties, 
unless notarially executed.* Over the whole of South 
Africa no distinction exists as regards the requirements of 
form and of registration between leases of land and leases 
of houses. 

From what has been said it is plain that in the modern ^"^ *Jie 
law, as in the later stages of the Roman-Dutch Law of law a 
Holland, a lease creates not only contractual rights as ^^^^^^j 
between the parties, but also proprietary rights, which land 
the lessee can, within the limits above stated, make good 

^ The lessee must, however, pay the rent to the purchaser, as a con- 
dition of retaining possession ; and this though he may have already 
paid it in advance to his lessor. Voet, 19. 2. 19 ; 3 Maasdorp, p. 218. 

2 Fichardt v. Webb (1889) 6 C. L. J. 258. The term of twenty-five 
years is taken from an Ordonuantie op het middel van den veertigsten 
penning of the States of Holland dated May 9, 1744 (7 G. P. B. 1441). 
Art. 9 enacts : ' Gelyk meede van Huuren, welke voor langer tyd als 
vyf en twintig jaaren worden aangegaan, deezen Impost op den voet 
van Erfpachten zal moeten worden betaald' ; and Art. 19 says : ' De 
aangeevingen van koop en verkoop, en van aUe zoodanige handelingen, 
waar van deezen Impost betaald moet worden, zullen ter Secretarye 
moeten worden gedaan binnen veertien daagen en de opdrachten van 
dezelve binnen den tyd van zes weeken na het sluiten van de koop, 
of andere handelingen uit krachte van welke den opdracht moet 
gedaan worden.' Following this. Van der Keessel {Th. 673) says : ' Si in 
XXV vel plures annos locatio contracta sit, et 40*" solutione et solenni 
in jure cessione opus est ' ; but Van der Linden (1. 15. 11) more correctly 
writes : ' Wanneer die tijd langer dan vijf en twintig jaaren zoude 
moeten duuren, moet de huur-cedulle gerechtelijk worden verleden.' 

3 Law No. 12, 1884, sees. 1 (c), and 2. 
* Procl. No. 8 of 1902, sec. 29 (1). The reader should consult the 

section. 



tenure. 



144 THE LAW OF PROPERTY 

against all the world. We are fully justified, therefore, in 

regarding a lease as a species of ownership in land.^ 

Land It does not fall within the scope of this work to describe 

tenure m • ^^ (jetail the systems of land tenure existing at the present 

Colonies, day in the several Roman-Dutch Colonies. We wiU 

merely observe that in South Africa besides : (1) freehold, 

and (2) leasehold, (3) perpetual quit-rent tenure of lands 

held from Government was introduced into Cape Colony 

by a Proclamation of 1813, and exists also in various 

forms in the other provinces. In Ceylon and British 

Guiana this form of tenure is unknown. 



CHAPTER V 

POSSESSION 

rpijg Whatever theory of possession may have obtained in 

theory of the native law of Holland, the theory of the Roman - 

possession -r% , i i . , ■■ , , •, . 

in Roman- JJutch lawyers approximates very closely to the doctnne 

Dutch Qf ^jjg Roman Law. The short chapter which Grotius ^ 
devotes to the subject reflects merely the views of the 
civilians. Since these are readily accessible from other 
sources we shall not occupy space with describing them. 
But the case is widely different with the remedies which 

Possessory Roman -Dutch Law afforded for the protection of possession . 

reme les. rjij^gg^^ though they present some necessary analogies 
with the Roman interdicts, were, in fact, historically 
unconnected with them. In the modem law, again, they 
have ceased to exist as distinct institutions. Their histori- 

^ So in Ceylon. ' A lessee under a valid lease from the owner is 
domimis or owner for the term of his lease. He is owner during that 
term against all the world, including his lessor,' Hutchinson C.J. 
in Abdul Azeez v. Abdul Bahiman, Current Law Reports of Ceylon, 
vol. i at p. 275 ; and again : ' In my opinion we ought to regard a notarial 
lease as a pro tanto alienation,' BonserC.J. in Ooonewxtrdana v. Baja- 
pakse (1895) 1 N. L. R. at p. 219 ; approved in Isaac Perera v. Baba 
Appu (1897) 3 N. L. R. 48. With regard to British Guiana the proposi- 
tion in the text seems more doubtful. See Appendix B to this Book 
{infra, p. 184). ^ Gr., book ii, chap. ii. 



POSSESSION 145 

cal importance, however, entitles them to some brief 
attention. 

Following the Roman Law the Dutch Law distinguished 
possessory actions according as they were directed to the 
acquisition, the retention, or the recovery of possession. 
The process of the Court which the plaintiff invoked 
was called a mandament, and the various remedies' 
available to him are distinguished as mandamenten van 
Immissie, van Maintenue, van Spolie, and van Complainte. 
We shall speak of these in order. 

1. Mandament van Immissie. This was the process Manda- 
whereby an heir sought to be put in possession of the ^°*g^^" 
deceased testator's or intestate's estate. It was, according 

to Van der Linden, in common use, but was seldom em- 
ployed except when one coheir kept another coheir or 
a person entitled to a legitim out of possession of the 
estate. It was almost always sued for in conjunction 
with the mandament van Maintenue.^ 

2. Mandament van Maintenue. Any person disturbed Manda- 
in his possession might address a request either to the Main-''" 
Hof or to the Hooge Raad for a mandament van Maintenue. tenue. 
To ground the action two conditions alone were necessary : 

(a) possession, (6) disturbance.^ The suppliant prayed a 
mandament whereby he should be ' maintained, secured, 
and so far as necessary let into the possession or quasi- 
possession of the lands and goods in question, and that 
the defendant should be ordered to indemnify him against 
aU past disturbance of possession and to abstain from 
the like in future '. In case of opposition to this prayer 
suppliant further asked to be placed in interim possession 
{recredentie).^ 

The defendant could defeat plaintiff's case by showing 

^ V. d. L. Jud. Pract. book ii, chap. xx. 

2 Fock. And., vol. i, p. 218 ; V. d. L., uU sup. 

^ For the Formula of Request for a mandament of Maintenue see 
Van Alphen, Papegay, chap. xv. The material part of the petition runs : 
' Versoekende Mandament daar byhy Suppliant werde gemaincteneert, 
gestijft en gesterkt (en voor zoo veel des noot zy) werde geimmitteert 
in de possessie vel quasi van de voorsz. Landen ende andere Goederen.' 

1713 L 



146 THE LAW OF PROPERTY 

that plaintiff's possession was aut vi aut clam aut precario 

ab adversario {vitiosa jpossessio)} 

Physical It should be noted that to maintain this action proof 

anoe'^'' of physical disturbance was unnecessary. The manda- 

unneces- jnent would be granted even in case of apprehended 

^^^^" disturbance— propter metum oppositionis habendae et 

turbationis f aciendae.^ In case of serious threats of violence 

proceeding from powerful persons a process was granted 

Manda- called the mandament van Sauvegarde.* But this seems 

SauveT*" to have been not so much a possessory remedy as directed 

garde. rather to the protection of person or property against 

apprehended violence. 
Manda- 3. Mandament van Spolie} This was a process directed 
SpoUe. to the recovery of possession. The plaintiff had to prove : 
{a) possession, (6) dispossession. The defendant's only 
plea was a denial of the facts alleged. The plea of vicious 
possession was not admitted.^ 

This writ was available in respect of every kind of 
property movable, immovable, or incorporeal. It lay 
against the spoliator and his heirs and also against all 
mala fide possessors . The remedy asked for was restoration 
and compensation and that plaintiff should be reinstated 
in possession . The plaintiff need not prove actual violence.* 

^ Papegay (ed. 1740), vol. i, p. 114 ; Fock. And., ubi sup. 

" Vromans, Tractaat de foro competenti, 1. 2. 1, note : Men simpele 
Maintenue mag versoeken schoon geen turbatie in de possessie geschiet 
is. Cf. Bort, Tract, van Complaincte, tit. 1, sees. 31-2. 

' Bort, ubi sup., sees. 26-30 ; V. d. L. Jud. PracL, 4. 5. 21. 

* V. d. L. , op. cit. , book ii, chap, xxii ; Papegay, chap, xiv (vol. i, p. 1 12). 
The material part of the petition runs : ' ende alsoo SpoUatvs ante 
omnia debet restitui keert hem (de Suppliant) aan desen Hove versoe- 
kende Mandament by 't welke de voorsz. C. van wegen de Hooge verig- 
heyd belast ende bevolen zy, de handen te trekken ende te houden van 
't voorsz. Land, ende den Suppliant daar mede te laten bewerden, als 
met zyn eygen goed, midsgaders kosteloos ende schadeloos af te doen 
alsulke Spolie ende belet, als hy den Suppliant in 't gebruyk van 't 
voorsz. Land gedaan heeft, ende ook te betalen de kosten hieromme 
gedaan,' &c. 

^ Fock. And., vol. i, p. 219. 

° Fockema Andreae says : ' ontzetting met of zondergeweld'. Van 
der Linden says that this remedy is open to those 'die geweldadiger wijze 
van het hunne berooft worden '. But there is no allegation of violence 
in the Formula given by Van Alphen, Papegay, chap. xiv. 



POSSESSION 147 

4. Mandament van Complainte} The conditions of Manda- 
this writ were more stringent. Suppliant must show : qq^* ^'^^ 
(a) that he had possessed, (6) quietly and peacefully, piainte. 
(c) for a year and a day, (d) disturbance or ouster within 
the year next before action brought. It lay in the case of 
either disturbance or ouster,^ and thus invaded the pro- 
vince both of Maintenue and of Spolie. According to 
circumstances suppliant prayed to be maintained in, or 
restored to, possession. The vitia possessionis might be 
pleaded as a defence. 

The above-named remedies were usually sued for in The 
combination. Thus, as already mentioned, the Immissie ^°anda°'^'*' 
was combined with the Maintenue. Similarly the Main- ments 
tenue was asked for as a coroUary either to the Complainte* used in 
or to the Spolie.* combina- 

According to Van der Linden the most commonly 
employed of the above-named interdicts were the Immissie 
and the Maintenue. The advantage of the latter over the 
Complainte lay in the fact that the plaintiff had to prove 
much less in order to obtain his remedy. 

In the modem law the enumerated possessory actions Possessory 
are no longer in use. ' The procedure in all three cases ' ^°^l^ 
(viz. maintenue, spolie, complainte), says Mr. Justice modem 
Wessels, ' was very formal and cumbersome, and has long *"^' 
ago been superseded in South Africa by a far simpler 
practice. We nowadays effect the same object by the 
ordinary interdicts, by an action or by a writ of spoliation ; 
the latter, though the same in name as the old Dutch 
mandament, is far simpler in its nature.' ^ In the modern 
practice when spoliation is alleged, the Court will upon 
an ex parte application grant a rule nisi, calling upon 
defendant to show cause why he should not forthwith 
restore the property.® 

^ V. d. L., op. cit., bookii, chap, xxi ; Bort, Tract, van Complaincte. 

2 Fock. And., ubi sup. ^ Voet, 43. 17. 7. 

* Vromans, ubi sup. ; V. d. L., op. oit., 2. 22. 1 ; Papegay, vol. ii, 
p. 116. ° Wessels, p. 482. 

' Exors. of Haupt v. deVilliers (1848) 3 Menz. 341 ; Swanepoel v. Van 
der Hoeven (1878) Buch., 4. By Ceylon Ord. No. 22 of 1871, sec. 4, 

L2 



148 THE LAW OF PROPERTY 

Their It must be carefully remembered that the possessory 

^pp^ka^*^ '^eiitiedies above mentioned are available only to the 
tion. possessor in the proper sense of the word, or at most to 
the quasi-possessor of a servitude, and in the modern 
law to the lessee,^ but not to a mere detauior, or to one 
who possesses nomine alieno. Voet, however, allows the 
interdict unde vi to a procurator, whose dominus is 
absent,^ and a recent decision of the Privy Council has 
extended the same indulgence to the trustee of the 
Maradana Mosque at Colombo.* 



CHAPTER VI 

SERVITUDES 

Servi- The next class of jura in re are Servitudes.* A servitude 

tudes. -g ^ j.gg^j j^gjj^ enjoyed by one person over or in respect 
of the property of another, whereby the latter is required 
to suffer the former to do, or himself to abstain from 
doing, something upon such property for the former's 
advantage.® The person for whose benefit such right 
is constituted may either enjoy it as incidental to and 

' any person who has been dispossessed of any immovable property, other- 
wise than by process of law, may institute proceedings against the person 
dispossessing him at any time within one year of such dispossession.' 
The effect of this section has been considered in numerous cases. See 
Pereira, p. 543. 

^ Swanepod v. Van der Hoeven, ubi sv/p. ; McLoughlin v. Ddahunt 
(1880) Foord, 129. So in Ceylon, Pereira v. Sobana (1884) 6 S. C. C. 61. 
See Pereira, pp. 544 ff. 

" Voet, 43. 16. 3 : ut tamen coloni et procuratores et similes extra 
ordinem audiendi videantur, qua tales, si absens sit dominus cujus 
nomine possident. 

^ Abdul Azeez v. Abdul Rahiman Mudliyar [1911] A. C. 746. Lord 
Shaw of Dunfermline, in delivering judgment cited with approval the 
Colonial cases, Ghingarapilla v. ChelUah (1902) 5 N. L. R. 270, and 
Sivapragasam v. Ayar (1906) 2 Balasingham 49. 

* For a valuable note on this topic see Kotz6, Van Leeuwen, vol. i, 
pp. 302 ff. 

° Voet, Compendium, 7. 1. 1 : Servitus in genere est jus in re 
alterius alteri constitutum, qua res alteri quam domino utilitatem 
adfert contra dominii naturam. Gr. 2. 33. 4 : Erfdienstbaerheid is 
een gerechtigheid om iet buiten 't ghemeene recht te hebben ofte te 
doen op eens anders grond tot dienste van de sijne. 



SERVITUDES 149 

inseparable from immovable property of which he is owner, 
or may enjoy it personally and without reference to any 
property of which he is owner. In the first case the right 
is termed a real or praedial servitude ; in the second case 
it is termed a personal servitude.^ 

In the case of real servitudes, the land in respect of Real or 
which the right is enjoyed is termed the praedium dominans, gervi-'* 
the land over which the right is exercised is termed the tudes. 
praedium serviens.^ Real or praedial servitudes exist 
for the benefit of lands and houses, and the burden of 
them is imposed on lands or houses. Personal servitudes 
exist for the benefit of persons, and are enjoyed in respect 
of movable as well as of immovable property.* When the 
word servitude is used without qualification it is usually 
a real servitude that is meant.* 

A real servitude is a fragment of the ownership of an 
immovable detached from the residue of ownership and 
vested in the owner of an adjoining immovable as accessory 
to such ownership and for the advantage of such immov- 
able.® Though ownership is thus divided and vested in 
two persons, the detached fragment is, as a rule, relatively 
insignificant in comparison with what remains. It seems 
natural, therefore, to speak of the person to whom the 
residue belongs as owner of the land, while the person 
in whom the detached right is vested is said to have 
a jus in re aliena.* Personal servitudes approach more 
nearly to ownership in scope of enjoyment and have little 
in common with real servitudes except the name. For the 
present we shall confine our attention to real servitudes. 

Real servitudes are distinguished as rustic and urban. 
The distinction has regard to the character of the dominant 
tenement according as it is used for the purpose of agricul- 

1 Voet, 7. 1. 1. 2 Voet, 8. 1. 2. 

3 Cens. For. 1. 2. 14. 2. * Voet, 8. 1. 1. 

° In the Roman Law in consequence of the technical rule ' Servitutea 
natura perpetuae sunt ', if a servitude, otherwise praedial, is consti- 
tuted in favour of a particular person, for life merely, it is not real but 
personal. Voet, 8. 1. 4. 

« Gr. 2. 33. 1. 



150 THE LAW OF PROPERTY 

ture and the like, or for residence.^ It does not to-day 
involve any consequences of practical importance. 
Bustio The following are the principal kinds of rustic servi- 

tudes tudes^ {veld-dienstbaerheden). 

1. Rights of Way : {a) for walking and riding {iter) 
which the Dutch writers subdivide into foot-path {voet- 
pad) ^ and bridle-path {rij-pad) ; * (6) for driving cattle 
as well as for going on foot and horse-back, and for 
light vehicles {actus — dreef) ; * (c) for all kinds of traflSc 
including laden wagons {via — weg) ; * to which may be 
added {d) a way of necessity {nood-weg),i.e. a way to be 
used only for the harvest, for carrying a corpse to burial, 
or other necessary purpose ; ^ or a way giving necessary 
access to a public road.* 

2. Water Rights : viz. right of leading water over or 
out of another's land {aqvae-ductus — water-hiding) ; ® right 
of discharging water on to another's land {water-lozing) ; ^^ 
right of drawing water from another's private stream, 
well, or cistern {aquae-haustus — water-haling) ; ^^ right of 
watering cattle {pecoris ad aquam appulsus) ; ^^ right of 
access to water over another's land {water-gang)}^ 

^ Voet, 8. 1. 3-4; Girard, p. 362; who says 'Mais le orit^rium 
est loin d'en etre incontest^ '. 

2 See Pock. And., vol. 1, pp. 276 fE. 

3 Gr. 2. 35. 2 ; Van Leeuwen, 2. 21. 2. 

* Gr. 2. 35. 3 ; Van Leeuwen, 2. 21. 3 ; Voet, 8. 3. 1. 

= Gr. 2. 35. 4 ; Van Leeuwen, 2. 21, 4 ; Voet, 8. 3. 2. 

" Gr. 2. 35. 6 ; Van Leeuwen, 2. 21. 6 ; Voet, 8. 3. 3. 

' Gr. 2. 35. 7 ; Voet, 8. 3. 4. 

' Gr. 2.35.8andll; VanLeeuwen, 2. 21. 7 ; Voet, vhi sup. Allrights 
of way must be exercised so as to burden the servient property as little 
as possible. — ' Alle servituten van pad en weg moesten " te minster 
schade en te naaster lage " worden gebruikt.' Fock. And. vol. i, 
p. 276 ; Gr. 2. 35. 6 ; Van Leeuwen, 2. 21. 6. 

' Gr. 2. 35. 14 ; Voet, 8. 3. 6. 
1° Gr. 2. 35. 16 ; Van Leeuwen, 2. 21. 16. 

^^ Gr. 2. 35. 13 ; Voet, 8. 3. 7. The person who enjoys such right is, 
as a rule, bound to help to keep the weU, &c., in repair. The right of 
access is implied. Van Leeuwen, 2. 21. 13. 

" Gr. 2. 35. 19 ; Van Leeuwen, 2. 21. 14 ; Voet, 8. 3. 11, and see 
Smit V. Russouw (1913) S. A. L. J., vol. xxxi, p. 194. Grotius adds 
' 't recht om te varen door een anders water', which Maasdorp renders 
' the right of ford ' ; but it seems rather to be what Voet (loo. cit.) calls 
' jus navigandi per alterius lacum perpetuum ad nostra praedia '. See 
also Van Leeuwen, 2. 21. 17. " Van Leeuwen, 2. 21. 13. 



SERVITUDES 151 

3. Right of taking sand out of another's soil or of taking 
lime and haYing a lime-kiln on another's land.^ 

4. Right of pasture.^ 

The above list is not exhaustive. Other real servitudes 
may be created by agreement (or in any of the other 
recognized ways) provided that they are of such a nature 
as to benefit the dominant estate, and ia other respects 
satisfy the legal conditions of servitudes.^ 

The following are urban servitudes : 

1. My right to require my neighbour to support the Urban 
weight of my house or waU (Jus oneris ferendi — muurhe- tudes. 
zwaring)} A peculiarity of this servitude is that, contrary 

to the general rule, it entails an active duty of keeping 
in repair. But if the owner of the servient tenement 
abandons it, the duty of repair also ceases. 

2. My right to drive timber, &c., into my neighbour's 
wall (jus tigni immittendi — inhalcking ofte inanckering).^ 

3. My right to have a balcony or other thing projecting 
over my neighbour's land {tigni prqjiciendi velprotegendi).^ 
This case differs from the last mentioned in respect of 
the remedy if a servitude is exercised without right. In 
the former case the person whose land is encroached upon 
may remove the obstruction ; in the latter case he must 
proceed by way of action.' 

4. My right to require you not to raise the height of 
your buildings {jus altius non tollendi — belet van hoger 
timmering)^ Scarcely distinguishable from this is my 
right that you should not interfere with my lights 
{servitus ne luminibus officiatur — vrij licht).^ If we are to 

1 Jus arenae fodiendae, jus calcis coquendae, etc. Voet, 8. 3. 11. 

^ Het recht om eens anders land te beweiden. Fock. And., vol. i, 
p. 277 ; Voet, 8. 3. 10. ' Voet, 8. 3. 12. 

« Gr. 2. 34. 3 ; Van Leeuwen, 2. 20. 2 ; Voet, 8. 2. 1. 

5 Gr. 2. 34. 7 ; Van Leeuwen, 2. 20. 6 ; Voet, 8. 2. 2. 

s Van Leeuwen, 2. 20. 7 ; Voet, 8. 2. 3. 

' Voet, 8. 1. 4 ; Dig. 9. 2. 29. 1. 

« Gr. 2. 34. 18 ; Van Leeuwen, 2. 20. 12 ; Voet, 8. 2. 8. The contrary 
servitude aliiiis tollendi is variously explained. See Voet, 8. 2. 

9 Gr. 2. 34. 20 ; Van Leeuwen, 2. 20. 13 ; Voet, 8. 2. 11. This is 
my right to forbid any act on the part of the ov/ner of the servient 



152 THE LAW OF PROPERTY 

adhere in this matter to the Roman Law the last-named 
right merely goes to the length of prohibiting interference 
with access of light to my upper windows. In this respect 
it is more limited in scope than the jus altius non tollendi. 
On the other hand, obstruction of light by trees would be 
an interference with the second right, but not with the 
first.^ Another allied right is the right of prospect ^ 
{vrij gezicht), which seems, in Roman Law, to have implied 
access of light not only to upper but to lower windows 
as well.* In this case, too, I am entitled to require that 
my light should not be intercepted by trees. 

5. My right to discharge the water from my eaves or 
spout on to your land(jws stillicidii velfluminisrecipiendi — 
drop) ; * or my contrary right to require you to discharge 
such water on to my land (jus stillicidii vel fluminis non 
recipiendi — drop-vang).^ 

6. My right to have an artificial drain passing through 
or over your land (jus cloacae mittendae — goot-recht)} 

tenement, which will interfere with access of light to my upper windows. 
Dig. 8. 2. 16 : (Paulus) Lumen, id est ut ooelum videretur, et interest 
inter lumen et prospectum ; nam prospectus etiam ex inferioribus locis 
est, lumen ex inf eriore loco esse non potest. This servitude may also 
be interfered with by planting a tree. Dig. 8. 2. 17 pr. A general 
servitude of light according to Voet (loc. oit.) includes future lights as 
well as present lights. But whether this is so or not depends upon 
circumstances and the terms of the grant. St. Leger v. Toion Council 
of Cape Tovm (1895) 12 S. C. 249. 

^ My neighbour may cut overhanging branches. Gr. 2. 34. 21. 
Supra, p. 137. 

^ Gr. 2. 34. 20 ; Van Leeuwen, 2. 20. 14 ; Voet, 8. 2. 12. Grotius 
adds (2. 34. 22) ' veinster-recht, i.e. 't recht om een veinster te hebben 
hangende ofte opgaende over eens anders grond' ; or, as Voet (8. 1. 9) 
puts it, ' jus aperiendi fenestram pendulam supra aream alterius.' 
Geziohtverbod is my right to prohibit you from exercising a right of 
prospect over my land. Gr. 2. 34. 27. Jus luminum or jus luminis 
immittendi is my right to open lights or windows in your wall. Dig. 
8. 2. 4 ; Voet, 8. 2. 9. Jus luminis non aperiendi is my right to require 
that you shall not open lights in your wall. Voet, 8. 2. 10. 

' Latior pleniorque de prospectu quam de luminibus servitus. 
Voet, 8. 2. 12. 

« Gr. 2. 34. 10 ; Van Leeuwen, 2. 20. 8. When the right is to dis- 
charge water in a stream it is called jus fluminis recipiendi (water- 
loop). Gr. 2. 34. 16. 

5 Gr. 2. 34. 13 ; Van Leeuwen, 2. 20. 9 ; Voet, 8. 2. 13. 

' Gr. 2. 34. 24 ; Goot-recht — 't recht om een goot te hebben leg- 
ghende ofte uitkomende op eens anders grond. Voet, 8. 2. 14 ; Dig. 



SERVITUDES 153 

Praedial servitudes are acquired by : How 

1. Agreement followed by acquiescence by the owner ^g^v^ 
of the servient land/ In South Africa a registered grant tudea are 
is required to create a right in rem, though a bare agree- 
ment is sufficient to affect a purchaser of the servient 

land, who takes with notice.^ 

2. Prescription of one-third of a hundred years.^ But 
no right can be grounded upon an enjoyment, however 
long continued, which was in its origin violent, clandestine 
or precarious {aut vi aut clam aut precario)} Further, 
no prescriptive claim can be based upon an enjoyment 
which is not adverse to the person against whose land it 
is claimed. Thus the mere fact that you have for upwards 
of a third of a century refrained from exercising a right 
gives me no negative servitude in derogation of your 
right. The servitude altius non tollendi, which, as has been 

8. 1.7; Voet (loo. cit.) mentions many other servitudes of less frequent 
occurrence. 

■■■ Gr. 2. 36. 2. Grotius seems to found upon texts of the Digest 
such as Dig. 8. 3. 1. 2 : Traditio plane et patientia servitutium inducet 
ofBcium praetoris. Of. Voet, Elem. Jur. lib. ii, tit. 3, sec. 36: 
Constituuntur praediales servitutes pactionibus et stipulationibus, 
accedente quasi-traditione, quae in usu et patientia vel in loci servituri 
assignatione oonsistit. Dig. 8. 1. 20. Consistently with what he here 
lays down Grotius advised in vol. iii, pt. 2 of the Hollandsche Consultatien 
no. 316, that by the general usage of Holland servitudes are constituted 
under hand and not before the Court. But the contrary view is ex- 
pressed by Groenewegen {in notis ad Gr. 2. 36. 2), Voet (8. 4. 1), Van 
Leeuwen (2. 19. 2), Decker (ad loc), and Van der Keessel (Th. 369). 
See Kotz6's note at vol. i, p. 281, of his translation of Van Leeuwen, 
and Steele v. Thompson (1860) 13 Moo. P. C. C. 280, there cited. Van 
der Linden (1. 11. 4) alone supports Grotius. 

" 2 Maasdorp, p. 205 ; Judd v. Fourie (1881) 2 E. D. C. 41. But see 
the dissenting judgment of Sheppard J. In Ceylon a servitude must 
(semble) be constituted by a notarial instrument in terms of Ord. No. 7 
of 1840, sec. 2 ; and such instrument must be registered (Ord. No. 14 
of 1891, sec. 16) ; but there is no provision for registering the servitude 
against the title to the land. 

* Gr. 2. 36. 4 ; Van Leeuwen, 2. 19. 3. The term is now thirty years 
at the Cape (Act No. 7 of 1865, sec. 106). The authors of the Rechts- 
geleerde Ohservatien point out (pt. 3, obs. 56) that Grotius is inconsistent 
with his own opinion in Holl. Cons. (vol. iii, pt. 2, no. 142) in favour 
(in some cases) of a prescription of thirty years. They further observe 
that many other periods of prescription existed in different parts of 
Holland. 

* Van Leeuwen, 2. 19. 5 ; Voet, 8. 4. 4. 



154 THE LAW OP PROPERTY 

seen, is your right to forbid me buUding higher, affords 
an illustration of this principle. No one is bound to 
buUd on his land unless he pleases, and the fact that 
a landowner refrains from exercising this right of owner- 
ship over a long period of time does not in the least 
prejudice his right to exercise it when he chooses to do so. 
Therefore, the mere fact that I have for upwards of a third 
of a century enjoyed an uninterrupted prospect, or access 
of light, over your land gives me no right whatever to 
insist on the continuance of this advantage, which has 
been throughout merely a matter of fact and not of law.^ 
So, if for a number of years an upper riparian owner, 
having, as such, a right to reduce the volume of the stream 
within the limits and for the purposes permitted by 
law, has, in fact, allowed a lower proprietor to enjoy an 
iminterrupted flow of water, the lower proprietor has not 
thereby acquired any right that this state of things shaU 
continue for his benefit. The position would be different 
in both these cases if the one proprietor had refrained 
from exercising his proprietary right in deference to the 
other's claim of right to have him do so, and had so 
refrained during the whole currency of the term of pre- 
scription. What is here said only applies to negative 
servitudes. An affirmative servitude is from its nature 
adverse to the proprietor over whose land it is asserted 
and exercised. 

Though the full period of prescription is necessary 
to constitute a servitude, it does not foUow that the 
Court will always grant an injunction for the removal 
of a structure which has been maintained for a shorter 

1 Voet, 8. 4. 5; Schorer ad Gr. 2. 34. 20. A good illustration is 
afforded by Neostadius (Siipr. Cur. Decis. no. 98). It relates to a claim 
of servitude in respect of access of light to a kitchen, which defendant 
had blocked. The report says : ' Cum enim naturalis haec aeris in 
culinam perceptio sit facultatis tantum, nuUo nnquam tempore prae- 
soriptionem parere potuit ; hoc amplius, quod negativa haec servitus 
non nisi hominis praecedente facto acquiri potuit. Tactum enim pro- 
hibitionis intercessisse oportuit, et praeterea huic prohibitioni obtem- 
peratum ; quorum neutrum hactenus intercessisse, vel f atente actore, 
verum est.' 



SERVITUDES 155 

period in derogation of another's right. Thus, by the 
keuren of Delft and other towns a building which had 
stood for a year and a day ^ without protest (onbeklaagt) 
was thereby sufficiently prescribed, i. e. its removal would 
not be decreed ; ^ but the party injured by its erection 
was entitled to compensation in damages.* 

According to Voet, to make good a claim to a servitude 
by prescription bona fides is necessary,* though Justus 
titulus is not. But the analogy of the general law of pre- 
scription in the Roman-Dutch Law suggests that neither 
the one nor the other is needed.* It is not required that 
the owner of the servient land should know that the 
servitude is being exercised against him.* 

3. LastwiU.' 

4. Judicial decree ; ® e. g. in one of the judicia divisoria. 

5. By operation of law {implied grant). According to 
Grotius, when the owner of two houses has used one of 
them in a way which, if the other house had not belonged 
to him, would have been in effect the exercise of a servitude, 
and the ownership is thereafter severed, each house 
retains its privileges and burdens as before.* This pro- 
position is supported by Groenewegen ^° on the ground of 
various keuren, and is accepted by the authors of the 
JRechtsgeleerde Observatien}^ Voet does not admit it, unless 

^ I.e. for a year, six weeks, and three days. Anton. Matthaeus, 
Paroemiae, no. ix, sec. 17. 

^ Voet (8. 4. 6) seems to contemplate two cases : (1) the building has 
been set up ' sciente vicino et operi non intercedente ' ; (2) ' vel, cum, 
eo ignorante, opus periectum esset, is deinde intra annum et diem non 
contradixerit ac destructionem petierit.' In either event the building 
must have been set up either on my land or on your land in derogation 
of a servitude or of a local law or custom. Prima facie any one may 
build on his own land at pleasure. Gr. 2. 34. 19. See Fock. And., 
vol i, pp. 254 fi. 

^ Gr. 2. 36. 6 ; and Groen., ad loc. ; Groen. de leg. abr. ad God. 3. 34. 
1-2 ; Van Leeuwen, 2. 19. 4. 

* Voet, 8. 4. 4 ; Compendium, 8. 4. 1. 

^ Of. Aiiton. Matthaeus, Paroemiae, no. ix, sees. 2-3. 

* Voet, ubi sup. 

' Gr. 2. 36. 3 ; Voet, 8. 4. 2. But see 2 Maasdorp, p. 213. 

8 Voet, loc. cit. " Gr. 2. 36. 6. 

w Ad loc. cit. 
" Bechtsg. Ohs., pt. 3, no. 58. 



156 THE LAW OF PROPERTY 

the servitude is constituted expressly or by the use 
of some formula which has the same effect.^ 
How Praedial servitudes are lost by : 

servi-'*^ 1. Merger,^ v^hen the servient and the dominant land 
tudes are meet in the same hand ; in accordance with the maxim 
' nuUi res sua servit '.* If the circumstances are such that 
the ' confusion ' is permanent, the servitude is altogether 
gone ; if the imion of ownership is merely temporary, 
as would be the case if the ownership of the two lands 
was not ' perdurable ' (to borrow a phrase from English 
Law), the servitude would be in suspense.* 

2. Release,* which may be either : (a) express ; or 
(&) tacit ; as by acquiescing ia some act of the owner of 
the servient land, which is inconsistent with the con- 
tinued existence of the servitude.^ 

3. Destruction of the dominant or servient property.' 

4. Determination of the grantor's interest in the 
serArient land.® 

5. Non-user for the third of a hundred years.^ 

6. Sale of land by public auction in pursuance of 
a judicial sequestration. In such case persons claiming 
rights of servitude, Soc, are given an opportunity of 
asserting them, and if they fail to do so cannot after- 
wards make them good against a purchaser.-^" 

■^ E.g. ' uti nunc sunt'. Voet, 19. 1. 6. He cites Holl. Cons., vol. ii, 
no. 145, where a vendor of one house who retained the other was 
denied a ' jiis stUlicidii '. In this case even a general clause of the usual 
character ' met zoodanige Vrijdommen en servituten ', &c., was said 
to be limited to servitudes of which the vendor was unaware. 

2 Dig. 8. 6. 1 ; Gr. 2. 37. 2 ; Van Leeuwen, 2. 22. 1 ; Voet, 8. 6. 2. 

" Dig. 8. 2. 26. 

* Sohorer, ad Gr. 2. 36. 6 ; Voet, 8. 6. 3 ; Salmon v. Lamb's Exor. 
(1906) B. D. C. 351. 

^ Gr. 2. 37. 3 ; Voet, 8. 6. 5. 

Gr. 2. 37. 4 ; Van Leeuwen, 2. 22. 3 ; Voet, ubi sup. 

' Gr. 2. 37. 5 ; Van Leeuwen, 2. 22. 6 ; Voet, 8. 6. 4. 

8 Gr. 2. 37. 6 ; Van Leeuwen, 2. 22. 5 ; Voet, 8. 6. 13. 

9 Gr. 2. 37. 7 ; Van Leeuwen, 2. 28. 4 ; Voet, 8. 6. 7. Rustic servi- 
tudes are lost by non-user, merely ; but in the case of urban servitudes 
it is necessary that the non-user should have been due to some adverse 
act on the part of the owner of the servient land. Voet, 8. 6. 11. This 
was called usucapio Ubertatis. Dig. 8. 2. 6 ; 41, 3. 4. 28. 

" Voet, 8. 2. 14 ; Holl. Cons., vol. ii, no. 6. 



SERVITUDES 157 

Certain rules apply to aU praedial servitudes, such as : Rules of 

1. There cannot be a servitude over a servitude.^ f^"?^*^ 

applica- 

' Servitus servitutis esse non potest.' tionto 

2. The extent of the servitude may not exceed what is servi-'^ 
required for the convenience of the dominant land.' txidea. 

3. There can be no praedial servitude without a domi- 
nant and a servient land ; which last must be near enough 
to the first to be useful to it, but not necessarily contiguous .* 

4. The duty laid upon the owner of the servient land 
must, with the single exception of the jua oneris ferendi, 
be a duty to forbear, not to do. ' Servitutium non ea 
natura est ut aliquid faciat quis, veluti viridia toUat aut 
amoeniorem prospectum praestet, aut in hoc ut in suo 
pingat, sed ut aliquid patiatur aut non faciat.' * 

5. A servitude must have a perpetual cause. ^ The rule 
is somewhat obscure. It seems to mean that the thing 
over which the right is claimed, as well as the right 
exercised, must from their nature be capable of perpetual 
continuance, and not depend merely upon the act of 
man. But the limits of the rule are ill defined ; and it 
may be doubted whether it forms part of the modem law. 



PERSONAL SERVITUDES 

The principal kinds of personal servitude in Roman Personal 
Law were usufruct and use. The corresponding institutions l^^^_ 
in Dutch Law are lijftocht and bruick. To describe these 
as servitudes is, perhaps, to make too great a conces- 

1 Voet, 8. 4. 7. = Dig. 33. 2. 1. 

' Voet, 8. 4. 13 flE. Hence a real servitude cannot consist in a 
mere amenity or personal enjoyment. Dig. 8. 1. 8 pr. : Ut pomum 
decerpere liceat et ut spatiari et ut cenare in alieno possimus servitus 
imponi non potest. Cf. Voet, 8. 4. 15. 

1 Voet, 8. 4. 19. 

= Dig. 8. 1. 15. 1 ; Voet, 8. 4. 17. 

^ Dig. 8. 2. 28 : Omnes servitutes praediorum perpetuas causas 
habere debent. See illustrations given in the text ; and for the modem 
law see Voet, 8. 4. 17, and Groen., de leg. ahr. ad Dig., ad loc. Even 
in the Civil Law the exercise of a servitude might be limited to 
certain times of the day or to alternate days. Dig. 8. 1. 4. 2 and 8. 1. 
5. 1. 



158 THE LAW OF PROPERTY 

Place in sion to the exigencies of Rqman terminology. Grotius 
system^aa departs from the arrangement of the Roman Law. From 
arranged full ownership he distinguishes proprietary rights less 
Grotius. than ownership, which he describes comprehensively as 
' gerechtigheden '} These, again, are either cormected 
with the ownership of land or not so connected.^ To the 
first of these sub-classes alone he accords the name of 
servitudes {erfdienstbaerheden).^ For the second sub- 
class he has no distinctive name. It includes such various 
rights as : (1) usufruct ; * (2) use ; ^ (3) feuds ; * (4) here- 
ditary leases ; ^ (5) tithes ; ® (6) mortgages ; ® and some 
others.^" Such an arrangement is, perhaps, better suited 
to a treatise on jurisprudence than to the exposition of 
a system of positive law. In this book we have already 
mentioned feuds and hereditary leases under the head 
of ownership of land. Tithes we omit as having no 
place in the modem law. Mortgages wUl form the subject 
of our next chapter. Of the above-mentioned rights, 
therefore, usufruct and use alone remain to be considered 
in this place. 
Usufruct. Li Roman Law usufruct meant the right of use and 
enjoyment of another's property,^^ usually for the life of 
the person entitled,^^ sometimes for a fixed or ascertainable 
period terminable on death.^^ A usufruct may be con- 
stituted over either immovable or movable property." 
Fungible things are not, properly speaking, the subject of 
usufruct, but may be the subject of a quasi-usufruct.^^ 
Usufruct may be either of a single thing or of the whole 
of the grantor's estate.^® Li the last event it is usually 
created by testament. 
The rights and powers of a usufructuary are : 

1 Gr. 2. 33. 1-2, and see Table iv to book ii, cap. i. 

2 Erfaenhangig, onerfaenhangig. 

3 Gr. 2. 33. 3. * Gr., lib. ii, cap. xxxix. « Cap. xliv. 
* Gapp. xli-xliii. ' Cap. xl. ' Cap. xlv. 

" Cap. xlviii. ^° Capp. xlvi-xlvii. " Inst., 2. 4 pr. 

12 Gr. 2. 39. 1 ; Voet, 7. 4. 1. i= Voet, 7. 1. 6 ; 7. 4. 13. 
1" Gr. 2. 39. 2 ; Voet, 7. 1. 14. " Gr. 2. 39. 20. 

16 Voet, ubi sup. 



PERSONAL SERVITUDES 159 

1. As the name indicates, to use the property and to incidents 
take its fruits ^ as owner. fruX 

2. To possess the property and to recover possession Rights 
from the dominus or from a third party .^ powers 

3. To alienate the right of use and enjoyment, but only °^ *^^ 
for the term of the usufruct.^ If, however, the property tuary. 
held in usufruct is let on hire to a third party, the lessee 
must be allowed a reasonable time after the determination 

of the usufruct to look out for other accommodation.* 

4. To give the usufructuary property ia pledge or 
mortgage and to suffer it to be taken in execution, but only 
to the extent of his usufructuary interest.^ 

The duties of the usufructuary are : 

1 . To frame an inventory of the property comprised Duties of 
in the usufruct. In Roman Law this was advisable, but f^^^uar 
not compulsory.® In Roman-Dutch Law it may be 
compelled.' 

2. To give security to the dominus : (a) for the use and 
cultivation of the property in a husband-like manner ; 
(fe) for its restoration ia proper condition upon the ter- 
mination of the usufruct.* 

^ Fructus are distinguished as natural, industrial, and civil ; and 
as pendentes (qui jam a solo separati asservantur), consumpti and 
percipiendi (qui licet percepti non sint, honeste tamen a diligente 
patre-familias percipi potuerunt). Voet, 41. 1. 28. The title to fructus 
naturales and industriales vests in the usufructuary as soon as he 
has gathered them (fructus perceptio: Inst. 2. 1. 36 ; Voet, 7. 1. 28), 
and not, as in the case of the bona fide possessor, as soon as they are by 
any means separated from the soil. Dig. 7. 4. 13 (ad fin.). Fructus 
civiles, such as rents of houses which accrue from day to day, are 
apportioned between usufructuary and dominus. Gr. 2. 39. 13 ; Voet, 
7. 1. 30. The phrase fructus civiles is not strictly speaking Roman. 
Girard, p. 249. 

2 Dig. 7. 1. 60 ; Voet, 7. 1. 32. 

^ Dig. 7. 1. 12. 2 ; Voet, loc. cit. This seems quite clear, though the 
text in the Institutes (2. 4. 3), 'nam extraneo cedendo nihil agitur,' has 
given unnecessary difficulty. Van Leeuwen says quite correctly (Cens. 
For. 1. 2. 15. 25) ' Sic ut usufructus cessione extraneo facta non tarn 
ipsum jus usufructus quam fructuum perceptionis commoditas translata 
videatur.' * Voet, loc. cit. ; Holl. Cons., vol. iv, no. 51. 

5 Voet, loc. cit. « Dig. 7. 9. 1. 4. ' Voet, 7. 9. 2. 

8 Gr. 2. 29. 3 ; Van Leeuwen, 2. 9. 10 ; Dig. 7. 9. 1 pr. : Si cujus 
rei usus fructus legatus sit, aequissimum praetori visum est de utroque 
legatarium cavere ; et usurum se boni viri arbitratu et cum usus fructus 
ad eum pertinere desinet, restituturum quod inde exstabit. 



160 THE LAW OF PROPERTY 

The duty ot giving security cannot be remitted to the 
usufructuary by the last will of the settlor ; ^ though it 
may be remitted by one who has granted a usufruct by 
act inter vivos ; and also by the heir of a testator, who 
has constituted a usufruct by his will.^ The security may 
be demanded by the reversioner at any time during the 
currency of the usufruct.* 

3. To keep ia repair at his own cost ; but extraordinary 
expenses may be charged against the dominus.* 

4. To pay all usual taxes and outgoings charged on 
the laiid.^ 

5. Not to commit waste by feUing timber/ destroying 
houses,' and the like. The permitted uses of timber 
are very similar to those recognized by Enghsh Law. 
Undergrowth may be cut. Trees may be felled on timber 
estates in due course of husbandry,^ and wood may be 
taken for vine-posts or necessary repairs. If large trees 
are thrown down by the wind they belong not to the 
usufructuary but to the dominus.^ 

6. Generally, to exercise all his rights with the care of 
a bonus-pater famUias.-^" 

The duties The duties and rights of thedomitius are the counterpart 

rights of ^^ *^® rights and duties of the usufructuary. Thus, on 

tl^e the one hand, he may not prevent, hinder, or diminish 

the right of use and enjoyment ; may not, for example, 

burden land held in usufruct with a real servitude without 

1 Gr., uM sup. ; V. d. K. Th. 371. 

2 Voet, 7. 9. 9. s Voet, 7. 9. 11. 
* Gr. 2. 39. 6 ; Van Leeuwen, 2. 9. 10 ; Voet, 7. 1. 36. 

5 Van Leeuwen, 2. 9. 11 ; Voet, 7. 1. 37. 

° Gr. 2. 39. 7 : Een lijftochter mag geen boomen afhouden dan die 
houbaer zijn. Houbaer is a translation of caedua, i.e. quae sucoisa 
rursus ex stirpibus aut radicibus renascitur. Dig. 50. 16. 30 pr. The 
usufructuary may work or open mines, but, as a rule, has a usufruct 
merely, not property, in the minerals gained. Van Leeuwen, 2. 9. 4. 
Apparently it is not waste to change the course of husbandry. Voet, 
7. 1. 24 ; Dig. 7. 1. 13. 5, and Gothofredus, ad loo. 

' Voet, 7. 1. 21. Ameliorating waste. Ibid. 

' Schorer ad Gr., ubi sup. 

^ Voet, 7. 1. 22 ; and therefore the usufructuary was not bound to 
replace them. Dig. 7. 1. 59. pr. ; Voet, ibid. 

" Voet, 7. 1. 41. 



PERSONAL SERVITUDES 



161 



the consent of the usufructuary.^ On the other hand, 
he retains all such rights as are properly incident to his 
reversion, such as the right of alienating the property 
by sale or gift, subject, of course, to the usufruct.^ 

Usufruct is constituted by : (1) agreement followed by How 
acquiescence on the part of the dominus ; » (2) last will ; « Ta'cor' 
(3) prescription of a third of a century ;5 (4) judicial sWtuted. 
decree.^ 

Usufruct is determmed by : (1) the death of the usu- How 
fructuary' or the arrival during his lifetime of the term Heter- 
or event fixed for its expiry * (The heirs of the usu- mined, 
fructuary have no right to remove standing crops ; but 
rents are apportioned between the usufructuary and the 
dominus.® When the usufructuary is a corporation the 
event corresponding to natural death is the dissolution 
of the corporation, or the effluxion of one hundred years 
from the date of the inception of the usufruct.) ;^° (2) com- 
plete, but not partial, destruction ^^ or change of form ^^ 
of the subject-matter of the usufruct ; (3) surrender ; ^^ 
(4) merger ; i* (5) non-user for one-third of a century.^^ 

1 Voet, 7. 1. 20. But ' jure civili ne quidem consentiente f ructuario '. 
Dig. 7. 1. 15. 7. 

2 Voet, vbi sup. s Qj.. 2. 39. 8 ; Voet, 7. 1. 7. 
* Gr. 2. 39. 9. s Gr. 2. 39. 11. 

^ Gr. 2. 39. 12. Jure civili also in certain cases : (5) by operation of 
law. Voet, 7. 1. 6. 
' Gr. 2. 39. 13 ; Voet, 7. 4. 1. » Voet, 7. 4. 11-13. 

» Inst. 2. 1. 36 ; Gr. uhi sup. ; Voet, 7. 41. 28. Schorer says 'aliis 
magis placet jus Romanum '. But the exceptional case mentioned by 
VirmiuB, ad List., loc. cit., sec. 3, in which the colonus has taken all 
the year's fruits before the expiry of the usufruct, but not paid all the 
year's rent, does not affect the generality of the rule laid down by 
Grotius. 
w Gr. 2. 39. 15 ; Voet, 7. 4. 1. " Gr. 2. 39. 14 ; Voet, 7. 4. 8. 

" Voet, 7. 4. 9. ^ Gr. 2. 39. 16. 

" Gr. 2. 39. 17 ; Voet, 7. 4. 2, 3. Merger may take place in conse- 
quence of abandonment of the usufruct (Dig. 7. 1. 64-5) or cession 
thereof to the dominus or conversely, if the usufructuary becomes 
proprietor (consolidatio). 

15 Gr. 2. 39. 18 ; Voet, 7. 4. 6. Others say, for thirty years. Voet, 
loc. cit. Usufruct is not lost by ' abuse ', the dominus being sufficiently 
protected by the cautio fructuxiria. The Institutes indeed say (2. 4. 3) 
' finitur usufructus non utendo per modum ', which has given some 
difficulty to the commentators. Vinnius (ad loc, sec. 2) and Voet 
(7. 4. 5) admit this mode of determination in certain oases. Heineccius 

1713 M 



162 THE LAW OF PROPERTY 

Usu3. Usus or Iruich is a lesser right than usufruct, but like 

it, is a life interest > Its incidents are the same as in 
the Roman Law. Closely akin to usus is habitatio {recU 
van bewming over een huis), but, unlike usus, it includes 
the right of letting the house for hire.^ 

Grotius refers to the same category of legal rights 
the right of grazing on common-lands and the hereditary 
right of fishing in another's water.^ 

Use, in general, is constituted and determined by the 
same modes as usufruct.* 



CHAPTER VII 

MORTGAGE OR HYPOTHEC 

The Mortgage is definedby Grotius as a 'right over another's 

nTortgage. property which serves to secure an obligation '.* 

The obligation intended to be secured may be either 
civil or natural, provided that it is not one which the Civil 
Law expressly disapproves.® Anything may be mortgaged 
which belongs to the mortgagor whether in full or qualified 
ownership,' and whether such property be movable or 
immovable, corporeal or incorporeal, in possession or 
consisting in a right of action.* Generally speaking, 
a man cannot mortgage what doe's not belong to him,' 

ad Virm. {uhi sup.) explains it away. In English Law if a life tenant 
purported to alienate the fee-simple he forfeited his interest. There is 
no clear evidence of a corresponding rule in R.-D. L. Cens. For. 1. 2. 
15. 25 ; Voet, 7. 4. 4. But see Groen. ad Gr. 2. 39. 16. 

1 Gr. 2. 44. 6 ; Voet, 7. 8. 3 ; Potgieter v. Zietsman (1914) 8. A.L.J. 
vol. xxxi, p. 351. 

2 Gr. 2. 44. 8. » Gr. 2. 44. 7. * Gr. 2. 44. 10 ; Voet, 7. 8. 3. 

° Gr. 2. 48. 1 : gereohtigheid over eens anders zaeck dienende tot 
zeeckerheid van insohuld. By ' gereohtigheid ' Grotius means a pro- 
prietary right less than ownership. Gr. 2. 33. 1. 

« Voet, 20. 1. 18. 

' Gr. 2. 48. 2. Grotius (ibid., sec. 3), founding on the Roman Law, 
says that the mortgage of urban servitudes and of agricultural instru- 
ments is forbidden, but Schorer dissents. 

' Voet, 20. 3. 1. A mortgage itseU may be mortgaged by the 
mortgagee to secure a debt due from himself (sub-mortgage). 

« Voet, 20. 3. 3. As between mortgagor and mortgagee the trans- 
action holds good, but not to the prejudice of the owner. V. d. K. 
Th. 539. 



MORTGAGE OR HYPOTHEC 163 

but sometimes he may. Thus a husband, by virtue of 
his marital administration, may mortgage the property 
of his wife, even though community of goods has been ex- 
cluded ; ^ and pawnbrokers, according to some authorities, 
are not required to restore to the true owner things pawned 
with them by a non-owner, except on terms of payment 
of the debt for security of which the pawn was given. ^ 
Further, a thing may be effectually mortgaged by a non- 
owner if the owner consents or afterwards ratifies the 
transaction ; or if the mortgagor afterwards becomes 
owner of the property mortgaged.* But this last departure 
from the rule has no application to a special mortgage 
of immovables.* 

The immovable property of a minor may not be 
mortgaged without judicial decree.^ 

Mortgages are either : (1) legal (or tacit) ; or (2) con- ciassifica- 
ventional (or express) ; ® and each of these may be either ^^Q^eaa 
general or special, according as the mortgage attaches 
to all the mortgagor's property, future as well as present, 

^ Voet, 20. 3. 7 ; Holl. Cons., vol. i, no. 151. This case is a peculiarly 
strong one, since the mortgage weis general. The jurist advised that it 
affected property which had belonged to the wife during the marriage 
even after its determination. 

^ Voet, uhi sup. ; Schorer ad Gr. 2. 48. 2. Voet's phrase is ' qui 
mensam foenebrem exercent '. The Dutch equivalent is ' Bank van 
Leening ', for which the word ' Lombard ' also served as a S3mon3Tn. 
Van Leeuwen, 4. 13. 4 ; Groen. de leg. abr. ad Cod., lib. viii, tit. 16. 
But see Muller v. Ohadwick cfc Go. [1906] T. S. 30. 

3 Voet, 20. 3. 4. For other cases see Voet, 20. 3. 7. 

4 Voet, 20. 3. 6. 

^ Decker ad Van Leeuwen, 4. 12. 4. In South Africa, by the Adminis- 
tration of Estates Act, 1913, sec. 87 : 'No tutor and no curator (other 
than a tutor testamentary or a curator nominate duly authorized 
thereto by the will or deed under which he has been appointed) shall 
alienate or mortgage any immovable property belonging to a minor 
unless the Court or, when the Master is satisfied that the immovable 
property does not exceed three hundred pounds in value, unless he 
authorize the alienation or mortgage of such property : Provided that 
the Master may authorize the mortgage of immovable property belong- 
ing to a minor to an extent not exceeding three hundred pounds if 
satisfied that the mortgage is necessary for the preservation or improve- 
ment of the property or for the payment of expenses necessarily incurred 
in connexion therewith, or for the maintenance or education of the 
minor.' For other cases in which mortgage is not permitted see 
Decker's note. * Gr. 2. 48. 7. 

M2 



164 THE LAW OF PROPERTY 

or only to some specific piece of property or collection, of 
things, such as a flock of sheep or all the goods in a par- 
ticular shop.^ Tacit mortgages arise by operation of law 
apart from and without any agreement between the parties. 
Conventional mortgages, as their name implies, are created 
by agreement. The phrase judicial mortgage (pignus prae- 
torium) is also in use, meaning an attachment of goods in 
execution of a judgment.^ 
Tacit Numerous tacit mortgages are mentioned in the books 

mort- of which some seem to be questionable, and many have 
been abrogated in certain Colonies by express enact- 
ment or by tacit disuse. The following list is complete or 
nearly so : 

1. The grantor of lands upon condition of a perpetual 
quit-rent * (cynsen — thynsen — oud-eigen) * has a tacit hypo- 
thec over the lands so granted for security of his rent. 

2. The Ward^ or Dykring for cost of works executed 
by it in constructing and maintaining dykes, windmills, 
and other such works has a tacit hypothec over the lands 
comprised within its area in respect of their several pro 
rata contributions.® 

3. The lender of money for repairing a house or a ship 
as well as any one who has expended labour in doing so 
has a tacit hypothec over the house or ship in question.' 

1 Voet, 20. 1. 2. 

2 Morice (2nd ed., p. 66) ; In re Woeke (1832) 1 Menz. 554. 

3 Gr. 2. 48. 1 1 ; Van Leeuwen, 4. 13. 8 ; Voet, 20. 2. 27 and 20. 4. 19 ; 
V. d. L. 1. 12. 2. 

* There is little difference of fact corresponding to the difference 
in name. See Cens. For. 1. 2. 17 ; Fook. And., vol. i, pp. 319 ff. 

^ Waard (polder) a drained lake — Sewel, Oroot Woordenboek ; not 
'reeve' as Sir H. Juta translates (V. d. L. ubi sup.). 

« Gr. 2. 48. 12 ; and Sohorer, ad loc. ; Voet, 20. 2. 31, and 20. 4. 19. 
All these writers agree in describing the right of the Dijkring as a tacit 
hypothec. But perhaps it should rather be described as a privileged 
debt, which was preferred even to anterior special hypothecs. Neostad. 
Cur. Holl. Decis. 24 and 35. The same privilege was allowed to all 
persons who had lent or spent money for the purpose. 

' Gr. 2. 48. 13, and Groen. ad loc. Grotius says : ' lemand die geld 
heeft gheleent om een huis ofte schip te bouwen ofte te herbouwen.' 
But the tacit hjrpothec does not extend to the case of the building or 
buying of a new house or ship. Groen. ubi sup. and de leg. abr. ad 
Dig. 20. 4. 5 ; Sande, Decis. Fris. 3. 12. 5. Persons, however, who had 



MORTGAGE OR HYPOTHEC 165 

Whether this hypothec applies to a ship as well as to 
a house has been doubted. Vinnius says that it does not.^ 
But Voet,^ Van Leeuwen, Huber,^ Schorer,* and Van der 
Keessel * are of the contrary opinion. On the other hand, 
that it does not attach to a new house or ship is agreed, 
unless, perhaps, to a house built to replace another which 
has been burnt down or destroyed.* 

This hypothec covers all necessary expenses, provided 
that the money has been actually applied to the repair 
of the house or ship. It does not cover impensae volup- 
tuariae except so far as the value of the house or ship has 
been really enhanced.' 

4. One who has advanced money for the expenses of 
a deceased person's last illness or burial has a tacit 
hypothec over all the deceased person's goods.* Whether 
the cost of mourning falls under the head of funeral ex- 
penses seems doubtful. Groenewegen " says that it does 
not, but an opinion in the contrary sense is to be found 
in the Utrechtsche Consultatien}° Van der Keessel allows 
that funeral expenses constitute a privileged debt, but 
says that they do not create a tacit hypothec. ^^ On this 

advanced money for such purposes were privileged after the Fisc. 
Dig. 42. 5. 26 and 34 ; Dig. 12. 1. 25. These passages speak of building 
a ship, but only of repairing a house. See also Decker ad Van Leeuwen, 
2. 7. 3. 

^ Vinnius, Select. Jur. Quaest., lib. xi, cap. iv. 

2 Voet, 20. 2. 29 ; Van Leeuwen, 4. 13. 8 : Die iemand geld heeft 
geleent om een huis of schip nodig te herstellen. Cf. Cens. For. 1. 4. 9. 7. 

^ Huber, Praelect. Jur. Civ., vol. iii, p. 17 {ad Dig. lib. xx, tit. 2), 
no. 8. 

* Ad Gr. 2. 48. 13. 5 y. d. K. Th. 417. 

« Voet, 20. 2. 28 ; V. d. K. ubi sup. 

' Voet, itbi sup. This hypothec has been abolished at the Cape (Act 
No. 5 of 1861, sec. 8, subsecs. 6 and 6), and in the Transvaal (Prool. 
No. 28 of 1902, sec. 130, subsecs. 10 and 11), with the proviso that nothing 
herein contained shall be construed so as to deprive any person of any 
right which he may now by law possess to retain any property what- 
soever which shall be in his actual possession until his costs and charges 
incurred thereon shall have been paid. 

8 Gr. 2. 48. 14 ; Van Leeuwen, 4. 13. 9. 

» Ad Gr. vhi sup. i" Vol. ii, no. 110. 

^^ V. d. K. Th. 418 : ' Qui in funus vel in ultimum defuncti morbum 

pecuniam credidit, utitur quidem privilegio etiam ante hypothecarios 

creditores ; sed hypothecam tacitam habere non videtur.' This is the 

law at the present day in the Cape Province. Funeral expenses and 



166 THE LAW OF PROPERTY 

point, again, the UtrecMsche Consultatien speak in a decided 
sense to the contrary : ' wesende notoir rechtens dat voor 
doot-schulden ende tot repetitie ofte betaling van de 
selve tacita et legalis hypoiheca competeert.' 

6. The fiscus has a tacit hypothec over all the property 
of administrators and receivers of public funds, and also 
of public contractors, in respect of debts arising out of 
their office or position.^ Similar rights were commonly 
delegated to farmers of the revenue, but they were 
required to enforce their claim within six months of the 
termination of their contractwith the fisc.^ A like hypothec 
was enjoyed by municipalities and various other smaller 
bodies such as churches, orphanages, &c., over the 
property of their administrators.* 

6. The fiscus has a tacit hypothec over the property 
of persons liable for taxes and dues.* This hypothec still 
holds good in South Africa.^ 

The Dutch Law gave similar rights to municipahties.^ 
But in South Africa they enjoy no such right imless 
expressly conferred by statute.'' 

medical fees rank as privileged claims, and as such take precedence of 
mortgage creditors (2 Maasdorp, p. 279 ; Stewart t. Hyland's Trustee 
(1907) 24 S. C. 254), but do not themselves create a right of hypothec. 

1 Gr. 2. 48. 15 and Groen. ad loc. ; Voet, 20. 2. 8 ; V. d. K. Th. 420. 
Query, whether this hypothec extends to the property of every one with 
whom the Crown has entered into any contract. Chase v. Du Toil's 
Trustees {1858) 3 S. 78. Of. Dig. 49. 14. 28; God. 8. 14 (15). 2. In the 
Cape and Transvaal Provinces it is not to apply to the estates of 
auctioneers and deputy-postmasters considered as collectors or receivers 
of the public revenue, nor to contractors with Government (Cape Act 5 
of 1861, sec. 8, subsecs. 1 and 2; Trans. Procl. No. 28 of 1902, sec. 130, 
subsecs. 7 and 8). ^ Voet, ubi sup. 

3 Gr.2. 48.18; Van Leeuwen,4. 13. 12; V.d.K.Th.4:25; abolishedat 
the Cape by Act 5 of 1861, sec. 8, subsec. 4, and in the Transvaal by Procl. 
No. 28 of 1902, sec. 130, subsec. 9. 

Voet, 20. 2. 8 ; V. d. K. Th. 419. 

' Cape Oovernment v. Balmoral Diamond Co. [1908] T. S. at p. 688. 
' It was common cause during the argument that by R.-D. L. the fiscus 
enjoys a tacit hypothec upon the general estate of a debtor for arrears 
of taxes due to it.' In the Cape Province not more than three years' 
arrears is covered by the hypothec (Act 5 of 1861, sec. 2). In the 
Transvaal this hypothec has been abolished by Procl. No. 28 of 1902, 
sec. 130, subsec. 6. « Voet, 20. 2. 8. 

' Cfreen Point Municipality v. Powell's Trustees (1848) 2 Menz. 380. 
(This was a claim for preference in a case of insolvency.) 



MORTGAGE OR HYPOTHEC 167 

7. An orphan has a tacit hypothec over a surviving 
parent's whole estate in respect of property coming from 
a deceased parent ^ and over his guardian's whole estate 
to indemnify him against all losses for which the guardian 
is answerable.^ This hypothec extends even to the 
property of a stepfather if the mother-guardian has not 
wound up the estate ; * also to the goods of the tutor's 
wife unless community of goods, or at least of profit and 
loss, has been excluded.* The same hypothec attaches also 
for the benefit of lunatics and prodigals over the estate 
of their curators.® 

8. The lessor of a house has a tacit hypothec for rent, 
and for waste to the property, over movables and animals 
brought on to the premises by the hirer.^ The lessor of 
land has the same right ,^ and a Hke right also over the 
fruits for his rent.® 

This hypothec extends only to property which belongs 
to the hirer, or has at least been brought into the house or 
on to the land for the purpose of remaining there with the 
knowledge and consent of its owner .^ It does not extend 

1 Abolished in the Transvaal by Procl. No. 28 of 1902, sec. 130, 

2 Gr. 2. 48. 16 ; Van Leeuwen, 4. 13. 11 ; V. d. K. Th. 421 ; abo- 
lished in the Transvaal by Procl. No. 28 of 1902, sec. 130, subsec. 1. In 
the Cape Province the abolition is less far-reaching. The hypothec still 
exists in case of a testamentary guardian, surviving parent, or step- 
father (Act 5 of 1861, sec. 8, subsec. 3) ; but its continuance is limited 
to a period of three (or five) years. Ibid., sec. 3. 

^ Or to the property of a stepmother whom the guardian-father has 
married. V. d. K. Th. 422. 

* Voet, 20. 2. 11. 

^ Voet, 20. 2. 13 ; abolished in the Transvaal but not at the Cape. 

" Gr. 2. 48. 17, and Schorer, ad loc. 

' Van Leeuwen, 4. 13. 12 ; Voet, 20. 2. 2-3; V. d. K. Th. 423. In 
the Civil Law the tacit hypothec attached to the invecta el illata only in 
the case of houses, and to the fruits only in the case of land. Dig. 20. 
2. 4, and 7 ; Cod. 4. 65. 5, and Groen. de leg. abr. ad loc. ; Voet, 20. 2. 2. 

' Gr. ubi sup. ; Voet, vbi sup. 

^ Dig. 20. 2. 7 ; Groen. ad Gr. ubi sup. ; Voet, 20. 2. 5. Following 
the South African authorities we must add " under such circumstances 
as would necessarily lead the landlord to believe that the goods belonged 
to the tenant, but not where the circumstances do not necessarily lead 
to such belief '. Ulrich v. Ulrich's TruMee (1883) 2 S. C. 319 ; Lazarus 
V Dose (1884) 3 S. C. 42. Mr. Justice Kotz^'s Van Leeuwen, vol. ii, 
p 96 n. would add the further qualification that the goods have been 



168 THE LAW OF PROPERTY 

to goods placed in the hands of the hirer to be worked by 
him in the course of his traded It is not lost, Voet says, 
even though the lessor may have accepted a surety or 
a conventional mortgage for the payment of the rent, 
for no one ought to be prejudiced by an excess of caution.^ 
The lessor's hypothec in respect of invecta et illata, in 
the case of lands and houses ahke, will not be effectual 
against third parties unless it is perfected by a decree 
of sequestration obtained from the magistrate before the 
goods have been removed from the leased premises.' The 
law is stated by Voet * in the following passage and holds 
good at the present day. 

' We must remember that now with us and in many 
other countries the right of tacit pledge in the ' invecta 
et illata " of a tenement, whether rural or urban, has no 
force unless they are sequestered (praecludantur) by pubhc 
authority while they are still in the tenement ; or, unless, 
when the tenant removes them, they are seized {arresto 
detineantur) by a vigilant creditor in the very act of removal, 
in which case the things which had been begun to be trans- 
ferred, but had not yet reached the place destined for 
their concealment, are to be taken back to the land ; . . . 
which sequestration (praeclusio) by our usages not only 

brought on to the premises for the purpose of always remaining there 
for the use of the hirer. The landlord's hypothec is not effectual against 
the goods of a bona fide sub-tenant beyond the amount due for rent by 
such sub-tenant to his immediate landlord. Voet, 20. 2. 6 ; Smith v. 
Dierks (1884) 3 S. C. 142. 

^ Van Leeuwen, 4. 13. 12. 

2 Voet, 20. 6. 12 ; Sohorer ad Or. vhi sup. 

^ ' To render this hypothec effectual it is necessary to attach the 
property, and the general rule is that the attachment must take place 
while the things are on the leased premises.' Webster v. Ellison [1911] 
A. D. at p. 79, per Lord de Villiers C. J. ' The sheep had not been 
attached before their removal ; and without such attachment the 
landlord's hypothec was ineffectual as against purchasers, without 
notice of the landlord's claim.' Ibid, at p. 84. It must be noted, 
however, that the landlord's hypothec does not require any judicial 
arrest to make it effectual over the tenant's property, so long as the 
property remains upon the premises. Over such property, being upon 
the premises, the landlord has a right of preference, in the event of 
insolvency, which prevails even against a pignus praetorium issued 
before the landlord has obtained an attachment or interdict in enforce- 
ment of his lien. In re Stilwell (1831) 1 Menz. 637 ; 2 Maasdorp, p. 264. 

« Voet, 20. 2. 3 (Berwick's translation). 



MORTGAGE OR HYPOTHEC 169 

confirms (firmat) the lessor's right of hypothec, but also 
gives him a preference, though by the Roman Law he 
seems to be entitled only to a simple hypothec ; and by the 
law of Amsterdam only the rent for one year besides the 
current year has preference.' ^ 

In the above passage Voet, it wiU be noticed, speaks 
of the possibiUty of seizure in the very act of removal ; 
and Grotius^ says that the lessor preserves his right if 
he proceeds against the mortgaged property immediately 
after its removal from the land (ende dit recht behoudt 
de verhuurder, indien hy 'tgoed, van sijn grond vervoert 
zijnde, dadelick vervolgt). This is the doctrine of ' quick 
pursuit ', which was considered by the Appellate Division 
of the Supreme Court of South Africa in the case of 
Webster v. Ellison.^ For the principle to apply there 
must be : (1) instant pursuit ; (2) seizure of the goods 
while stiU in transit to their place of destination. In no 
case can the landlord defeat the rights of third parties 
who, before sequestration, have obtained the goods for 
value without notice of the landlord's claim. 

9. Justinian gave a wife a hypothec for her dower over 
the whole of her husband's property.* In the Roman- 
Dutch Law this right only attached when by ante-nuptial 
contract all community of goods and of profit and loss 
had been excluded, and the wife's property was protected 
from alienation by the husband. If these conditions were 
present the wife had a hypothec which was preferred to 
the claims of her husband's post-nuptial (but not ante- 
nuptial) hypothecary creditors.® 

1 By Cape Act 6 of 1861, sec. 5, the tacit hypothec of landlords shall 
not be claimable for any ' sum greater than one whole year's rent '. 
There seems to be no corresponding limitation in the Transvaal. 

2 Gfr. 2. 48. 17. 

= [1911] A. D. 73. 

* Cod. 8. 17 (18). 12. 4. 

5 Groen. de leg. abr. ad Cod. 5. 12. 30 ; Voet, 20. 2. 20 and 23. 4. 52 ; 
V. d. L. 1. 12. 2. Supra, p. 92. In the Transvaal, Prool. No. 28 of 
1902, sec. 130, subseo. 4, abolishes ' the tacit hypothecation possessed 
by women married out of community of property upon the estates of 
their husbands in respect of assets belonging to such women adminis- 
tered by their husbands '. 



170 THE LAW OF PROPERTY 

10. Legatees and Fidei-commissarii^ have a hypothec 
over the estate of the deceased ^ but not one which can 
be made good to the prejudice of his creditors.* 

1 1 . A ship is bound to the owner of the cargo, if the cargo 
has been sold by the master for the expense of necessary 
repairs.* The ship and the cargo are bound to the master 
and his ship-mates for freight ^ and other charges. 

12. A factor or commission agent has a tacit hypothec 
on goods sent him on commission for advances made upon 
such goods to the owner,® or for pledging his credit on 
behalf of the owner.' 

13. A tacit hypothec — or, to speak more properly, 
a right of retention — attaches in f avoiu- of any person who 
has put his labour into property delivered to him by the 
owner for that purpose ; e. g. when cloth has been delivered 
to a tailor to make up into clothes. By an extension of the 
same principle attorneys and other legal practitioners 
have a right to retain documents until paid their charges 
in connexion with legal proceedings to which the documents 
relate.* The innkeeper's lien may, perhaps, be referred 
to the same head.® 

''■ Transvaal Proc. No. 28 of 1902, sec. 130, subsecs. 2 and 3, abolishes 
the tacit hypothecs of legatees and fidei-commissary heirs or legatees. 
The Cape Act by sec. 4 limits the legatee's hypothec (nothing said about 
fidei-commissaries) to a period of twelve months, which may be extended 
in case of disability, but not beyond five years. 

2 Cod. 6. 43. 1. 1 ; Voet, 20. 2. 21 ; V. de L. vhi sup. The hypothec 
did not extend to the general estate of the legatee or fidei-commissary. 
Cod. 6. 43. 1. 5. 

' Voet, uhi sup. 

" Gr. 2. 48. 20 ; Voet, 20. 2. 30. 

= Gr. 2. 48. 19 ; Van Leeuwen, 4. 13. 13 and 4. 40. 2 ; V. d. K. 
Th. 682. In this case the master is not necessarily the owner of the ship. 

» Van Leeuwen, 4. 13. 13 ; V. d. L. 1. 12. 2. 

' Gr. 2. 48. 21 : Voor de schade die hy zoude moghen lijden door 
het verstrecken van sijn gheloof voor den eighenaer van de zelve 
koopmanschappen. Van Leeuwen, 4. 13. 3: Een Factoor op de 
koopmanschappen van S3m meester, voor de penningen die hy aan 
hem ten agteren is, of voor hem getekent heef t. Kotz6 translates ' gete- 
kent ' by ' paid '. Aliquando bonus dormitat Homerus. If I do not 
misunderstand Neostadius, Cur. Holl. Decis. 45, the hypothec may be 
claimed also in respect of a balance due upon a general account. 

8 Van Leeuwen, 4. 30. 2. Cf. Trustees of Tritsch v. Berrange & Son 
(1884) 3 S. C. 217. 

° Van Leeuwen, loc. cit. 



MORTGAGE OR HYPOTHEC 171 

The effect of a tacit hypothec, whether special or general, Effect of 
was in Roman Law precisely the same as the effect of *'*"* 

■"■ •' mort- 

a conventional hypothec, whether special or general ; gages. 
that is to say, the mortgaged property passed to a third 
party, by whatever title, subject to the encumbrance.^ 
In the Roman-Dutch Law the rule is the same with regard 
to immovables. A tacit hypothec of immovables, whether 
special or general, foUows the property into the hands 
cujusvis possessoris,^ so that the hypothec attaches to the 
land even in the hands of a third person, whether he takes 
by onerous or by lucrative title.* In the case of movables, 
however, the benefit of the tacit hypothec only lasts so 
long as the debtor, or creditor, remains in the possession 
of the mortgaged property. It is extinguished by transfer 
to a third party whether by onerous or lucrative title ; 
and, if a third party acquires a special hypothec accom- 
panied by delivery, or a right of retention, over specific 
goods of the debtor, he is preferred to the creditor under 
the earlier hypothec* This is one more instance of the 
weU-known rule, ' mobUia non habent sequelam ' — ' meu- 
belen en hebben geen gevolg '. 

Conventional mortgages are created by agreement Conven- 
between mortgagor and mortgagee. We shall consider, ^qj^. 
first, their form ; secondly, their effect. gages. 

1. In Roman Law no form was required for the creation i. Re- 
of a mortgage. AH that was needed was the agreement of ^'^j' ^^ 
the parties, which might be expressed verbally or in writing .' form. 

1 Voet, 20. 1. 14. 

2 But a general conventional hypothec does not bind the property 
in the hands of a bona fide purchaser for value. Voet, loc. cit. Infra, 
p. 176. 

3 V. d. K. Th. 429. In the Cape Province this has been altered by 
statute, and tacit hypothecs no longer affect property in the hands of 
a purchaser for value without notice. But no mortgagee is for the 
purpose of this section deemed to be a purchaser. Act 5 of 1861, sec. 9. 

* Voet, 20. 1. 14 {ad fin.). Voet is speaking here of general tacit 
hypothecs. But the same rule would apply also to a special tacit 
hypothec. 

5 In the later law an instrument executed publicly or subscribed by 
three witnesses was preferred to other mortgages. Cod. 8. 17 (18) 11.1 
(Leo; A.D. 472). 



172 THE LAW OF PROPERTY 

In Roman-Dutch Law the matter is not so simple. We 
have to distinguish five cases : 

(a) Special mortgage of immovables ; 

(b) General mortgage of immovables ; 

(c) Special mortgage of movables ; 

(d) General mortgage of movables ; 

(e) General mortgage both of immovables and of mov- 
ables {general bond). 

(a) Special (a) Special mortgages of immovables were required 

^a°geof ^y *^^ Placaat of Charles V of May 10, 1529, to be 

immov- executed by solemn writing passed ' before the Judge 

^ '^^' and in the place where the goods are situated '} The 

transaction must be duly registered^ in the land-book. 

A duty must be paid of 2^ per cent.* of the amount of 

the loan.* All these conditions^ were indispensable if 

the mortgage was to affect third parties, i.e. to bind 

the property.^ 

(6) General (fe) General mortgages of immovables required the same 

rf hnmov- conditions of execution,'' registration,* and payment of the 

ables. 

1 1 G. P. B. 374. Supra, p. 129. 

2 Political Ordinance of April 1, 1680, Art. 37 (1 G. P. B. 339). It 
should be noted that the reference in that article is to the Placaat of 
May 9, 1560 (2 G. P. B. 7. 59 and 1402) and not to the Placaat of 1529. 

^ Placaat der 40 Penning, December 22, 1598, as reissued 1632. 
1 G. P. B. 1953. The duty must, however, have been imposed before 
that date, for it is already mentioned by Grotius (2. 48. 30), whose 
work was written in 1619 and published in 1631. See Boel ad Loen. 
p. 118. 

* V. d. K. Th. 427. 

^ Van der Keessel {Th. 433), speaking of registration, says : ' qua 
tamen insinuatione neglecta hypothecae constitutio non est nulla, 
frustra dissentiente Boel ad Loen. Decis. 17, p. 117.' Boel, however, 
is supported by the express words of the Placaat der 40 Penn., 
Art. 13 (1 G. P. B. 1967). 

" Gr. 2. 48. 30: Bizondere onder zetting over ontilbaer goed is 
krachtig zo wanneer de selve gesohied voor 't gerechte van de plaetse 
alwaer het goed is gelegen mids dat oock den veertigsten penning daer- 
van zy betaelt ende de onderzetting te boeck aengheteickent, maer 
anders niet. 

' Pol. Ord., Art. 35 (1 G. P. B. 339). 

8 Ibid., Art. 37 ; Gr. 2. 48. 23, and Placaat der 40 Penn., Art. 12 
(1 G. P. B. 1937). 



MORTGAGE OR HYPOTHEC 173 

fortieth penny/ but might be passed before any Judge in 
the province of Holland.^ 

(c) Special mortgages of movables are either accompanied (c) Special 
by delivery of the subject of the mortgage to the mortgagee", X^^f^P 
or unaccompanied by deUvery. In the first case the trans- ables. 
action is commonly called a pledge (pignus — pand ter minne) . 
To the vahdity of a pledge transfer of possession is essen- 
tial. An agreement, therefore, which allows the pledgor 
to retain the goods pledged as a loan or deposit by the 
pledgee renders the pledge invahd, any such arrange- 
ment being looked upon as a fraud upon the law, which 
insists upon dehvery as an essential element in the trans- 
action.* In the second case the hypothec gives a right of 
preference against unsecured creditors provided it is 
executed before three witnesses or before a notary and 
two witnesses. So the law is stated by Grotius.* The 
advertisement of 1665 added the further requirement 
of the payment of the fortieth penny,® and (semhle) 
registration is also necessary.® 

It follows that when Van der Linden says : ' In order 
that a pledge of movables may be vahd not only as against 
the debtor himself, but also as against third parties, 
dehvery of the property to the creditor to whom it is 
pledged is necessary,' ^ his words must not be taken to 

^ Waersohouwinge van de Staten van HoUandt ende West-Vriesland, 
February 5, 1665 (3 G. P. B. 1005). This enacts that no hypothec 
general or special, whether on movables or immovables, shall give any 
preference unless the fortieth penny is paid at the time of the passing 
of the mortgage. Certain exceptions are specified : (a) mortgages in 
favour of orphans (verbanden gedaan op Weeskamers recht, ten voor- 
deele van Wees-Kinderen, welokers Goederen ter Weeskamere gebracht 
ende onder d'administratie van Weesmeesteren ghestelt zijn) ; (6) legal 
hypothecs ; (c) pledges of movables accompanied by transfer of posses- 
sion ; (d) bottomry bonds. Kusting-brieven (Gr. 2. 48. 40 ; 3. 14. 25) 
required solemn execution, but not payment of duty. Voet, 20. 1. 11. 

2 Pol. Ord., Art. 35 ; Voet, 20. 1. 12 ; V. d. K. Th. 428. 

3 Voet, 20. 1. 12 ; Holl. Cons., vol. iii, pt. 2, no. 174, p. 470 ; V. d. K. 
Th. 636. 

* 6r. 2. 48. 28. The three witnesses are taken from the jus civile. 
Cod. 8. 17 (18). II. 1. 
5 V. d. K. Th. 43,1. 

8 Francis v. Savage <& Hill (1882) 1 S. A. R. 33. 
' V. d. L. 1. 12. 3. 



174 THE LAW OF PROPERTY 

exclude the possibility of a mortgage of movables by- 
notarial deed duly registered but unaccompanied by 
delivery.^ 

(d) General {d) General mortgages of movables, according to Voet, 
S°mov^^ may be made under the same conditions as a general 
ables. mortgage of immovables ; ^ that is, they require execution 

coram judice, registration, and payment of the fortieth 
penny. 

(e) General (e) A general mortgage of immovables and movables, 
°° ■ in other words of all the property of the debtor, is con- 
stituted by an instrument called a general bond, or more 
often by a general clause in a special bond. According 
to Van der Linden it was not valid imless the payment 
of the fortieth penny (2f per cent.)^ was made to the 
State. It could be executed before the Court, before 
a notary and witnesses, or even under hand.* 

How con- Such, then, are the ways in which conventional mort- 

mortgagea g^g®^ ^^® Constituted in the Roman-Dutch Law, and the 

are con- method is substantially the same in the Colonies at the 

the present day. In South Africa a special mortgage of 

present immovable property is constituted by means of a bond 

in South executed before the Registrar of Deeds.^ A general 

Africa; conventional mortgage, whether of immovables or of 

movables, is constituted by a general bond or by a general 

clause in a special bond. A general bond may be executed 

either before the Registrar of Deeds or before a notary and 

^ Kotz6's Van Leeuwen, vol. ii, p. 107 ; Francis v. Savage & Hill, 
ubi sup. ; Tatham v. Andree (1863) 1 Moo. P. C. C. (N. S.) 386. For 
Ceylon Law see Ord. No. 8 of 1871 and No. 21 of 1871 ; Pereira, p. 528. 
In Brit. Gui. a mortgage of movables unaccompanied by delivery 
will not prejudice general creditors unless judicially executed. Exors. 
ofForshaw, re Estate Watt (1892) 2 Brit. Gui. L. R. (N. S.), 116. 

^ Voet, 20. 1. 12 : Potest tamen procul dubio generalis hypothecae 
constitutio etiam sine ulla traditione secundum HoUandiae mores 
efficax esse, si coram aliquo HoUandiae judice solemniter constituta et 
actis publicis insinuata et quadragesima debiti aerario illata sit. In the 
case of In re Insolvent Estate of Loudon ; Discount Bank v. Dawes 
(1829) 1 Menz. 380, it was said that there is no authority to show that 
the law required registration of a general h3rpothec of movables. 

^ Waerschouwinge of February 5, 1665, ubi sup. 

^ V. d. L. 1. 12. 3. For Cape Law see 2 Maasdorp, p. 236. 

5 2 Maasdorp, p. 235. 



MORTGAGE OR HYPOTHEC 175 

two witnesses.^ A special mortgage of movrables (unac- 
companied by delivery) is effected in the same way as 
a general mortgage. In all the above-mentioned cases 
registration in the ofi&ce of the Registrar of Deeds is 
necessary to give the mortgagee preference over other 
creditors.^ 

In Ceylon, by statute, general mortgages give no right in 
of preference, and therefore are, in effect, abolished.* eyon. 
A special mortgage of immovables must be executed before 
a notary and two witnesses or a District Judge, and must 
be registered.* A special mortgage of movables must be 
made in writing, and registered.* 

In British Guiana mortgages are passed before a Judge in British 
of the Supreme Court.* <^'^^°''- 

In Roman Law, as above remarked, a mortgage, whether 2. Effect 
general or special,' whether of movables or immovables, °entSnal 
whether express or tacit, bound the mortgaged property mort- 
into whose hands soever it might come. This result ^ 
was quite independent of notice of the existence of the 
mortgage. In Roman-Dutch Law we must distinguish 
between the different kinds of mortgage. Thus : (a) a 
special mortgage of immovable property, vaUdly executed, 
has the same effect as in Roman Law, and creates a jus 
in re available against all third parties ; ^ (6) a general 

1 Maasdorp, p. 236. ^ Ibid., p. 238. ' Ord. No. 8 of 1871, sec. 1. 

« Ord. No. 7 of 1840, sec. 2 ; Ord. No. 17 of 1862, sec. 1 ; Ord. No. 14 
of 1891, sec. 16. 

5 Ord. No. 8 of 1871, sec. 3 ; Ord. No. 21 of 1871, sec. 3. 

* See Appendix B to this Book {infra, p. 185). 

' Voet, 20. 1. 14r-15. There was a difference, however, as regards 
alienation, which in the case of a general h3rpothec was permitted sub- 
ject to the burden — cum sua causa — (Cod. 4. 53. 1), but in the case of 
a special hypothec was forbidden. Dig. 47. 2. 67 (66) pr. ; Si is qui 
rem pignori dedit vendiderit earn, quamvis dominus sit, furtum facit, 
sive earn tradiderat creditori, sive speoiali pactione tantum obligaverat. 

8 Gr. 2. 48. 32 ; Voet, 20. 1. 13. The only qualification is that in 
certain cases the creditor may be estopped by his conduct from asserting 
his right. Ibid. In practice the mortgagee, at all events in South 
Africa, is completely protected by the fact that his mortgage is registered 
against the title to the property. At the Cape ' it will be the duty of the 
Registrar to decline to register anything that can in any way amount 
to an interference with the dominium, and where he fails to do so the 
mortgagee may apply to the Court for redress.' 2 Maasdorp, p. 266. 



176 THE LAW OF PROPERTY 

mortgage of immovable property affects the property 
in the hands of an ahenee who takes titulo lucrative, or 
with notice ; it does not burden the property in the hands 
of an alienee, who takes titulo oneroso and without notice;^ 
(c) a special mortgage of movables, whether constituted 
by delivery (pledge), or by notarial bond, binds the 
property so long as the mortgagee or mortgagor retains 
possession, and also in the hands of any third party who 
takes (by lucrative title or ?) with notice,^ but not in 
the hands of an alienee, who takes titulo oneroso and 
without notice ; ^ (d) a general mortgage of movables 
affects the property so long as it remains in dominio 
debitoris * (But an alienee,® whether by onerous or by 
lucrative title, takes free of the encumbrance, and his 
position is the same whether he takes with or without 
notice.) ; (e) a general bond in modern practice has the 
same effect as a general mortgage of movables. 

' A general conventional mortgage gives the mortagee 
no possessory or quasi-possessory rights over any portion 
of the debtor's property, whether movable or immovable, 
and consequently he has no power either to interfere with 
the debtor's right of ahenating or disposing of his own 
property or pledging or mortgaging the same to third 
parties, or to prevent other creditors, who have obtained 
judgment against the debtor from attaching such pro- 
perty in execution of such judgment. The only right it 
does confer upon the mortgagee is a right of preference 
(if the mortgage has been duly registered) upon the estate 

^ Voet, 20. 1. 14 : Nostris moribus immobilia generali hypotheca 
solemniter coram lege loci devincta, si quidem titulo oneroso in 
tertium bona fide accipientem alienata sint, non amplius vinculo 
pignoris obnoxia manent ; at si lucrative titulo, durat etiamnum 
pignoris causa, at hypotheoaria adversus possidentem titulo lucrative 
salva est.' Of. V. d. K. Th. 429. 

2 Coaton V. Alexander (1879) Buch. 17 ; Kotz6's Van Leeuwen, 
vol. ii, p. 105, n. ; V. d. K. Th. 432. 

^ But a right of pledge is commonly extinguished if the creditor 
restores possession to the debtor. Voet, 20. 1.13. Non aliter creditori 
securitas in mobilibus specialiter obligatis et traditis superest quam si 
ipse possessioni sibi traditae adhuo incumbat remque teneat. 2 Maas- 
dorp, p. 234. 

■> Voet, 20. 1. 14 ; V. d. K. Th. 432. 

^ Including a subsequent pledgee. Voet, ubi sup. 



MORTGAGE OR HYPOTHEC' 177 

of the debtor in case it should afterwards be sequestered 
as insolvent.' ^ 

Priorities amongst mortgages are governed by the Priorities, 
following rules : 

1. A legal right of retention (jus retentionis), and a pledge 
of movable property perfected by deUvery, give the creditor 
an inexpugnable right to retain the property concerned 
against all rival claimants until his own claim is satisfied.^ 
To the same category belongs the landlord's tacit hypothec 
when it has been confirmed by attachment.* The so-called 
pignus praetorium, which arises from the attachment of 
property in execution of a judgment, belongs to the 
same class.* Within this group no question of priority 
arises, for the simple question is, 'Who is in actual posses- 
sion of the property ? ' Thus, if a creditor with a right 
of retention parts with the possession to the debtor, who 
subsequently pledges the property with a third party, 
the pledgee's right is paramount both against the prior 
creditor and also, so long as he retains the possession, 
against a judgment creditor who seeks to attach the 
property under an execution. 

2. Subject to the prior claims of mortgages falUng 
under class 1, the rule is that all mortgages, however 
constituted, rank in order of time.^ But an unpaid vendor 
of land who has secured himself by taking an express 
hypothec contemporaneous with the transfer, termed 
a hvsting-hrief, in respect of the unpaid purchase-money, 
is preferred before all other mortgages for the principal 
sum, and also if he has expressly stipulated for it, for 
arrears of interest as well.^ 

^ Van Leeuwen, 4. 13. 19 ; 2 Maasdorp, p. 270 ; Morice, English and 
Roman-Dutch Law (2nd ed.), p. 63. 

2 Voet, 20. 1. 12 ; 20. 4. 19. Of. V. d. K. Th. 437. 

=• Voet, 20. 4. 19 ; V. d. K., tibi sup. 

* In re Woeke (1832) 1 Menz. 554. 

' Cod. 8. 17 (18). 2: Nam cum de pignore utraque pars contendat 
praevalet jure qui praevenit tempore. Gr. 2. 48. 34r-6 ; Voet, 20. 
4. 16. 

' Kusting-brief is een sohuldbrief spruitende uit een restand van 
koop-penningen, die den Verkoper houd op het verkogte goed, en 

1713 N 



178 THE LAW OF PROPERTY 

3. By Art. 35 of the Political Ordinance of 1580 general 
conventional mortgages of immovables are postponed 
to special conventional mortgages, though of later date.^ 
This rule has no reference to general tacit mortgages, 
as to which the statute is silent.^ These, therefore, 
rank in their proper place in order of time, and are 
preferred to aU mortgages of later date whether general 
or special.' 

4. Subject to the above exceptions the general rule 
holds good that mortgages rank in order of time, i. e. from 
date of execution, which in modern practice means from 
the date of registration, where registration is required by 

gepasseert werd ten tyde van de opdragt, en heeft voor alle verbanden 
praeferentie omtrent de hoofdsom, dog niet omtrent de verscheene in- 
teresse, tenwaare zulks uitdrukkelyk was bedongen. Boey, Woorden- 
tollc, sub voce. Cf. Gr. 2. 48. 40 and 3. 14. 25 ; V. d. K. Th. 437. 

1 1 G. P. B. 338 ; Gr. 2. 48. 34 ; Voet, 20. 1. 14 ; V. d. K. Th. 436. 

^ ' Altum de legali in diet. art. 35 silentium est ', says Voet (20. 
1. 14), 'quoetiamfundamento responsum generalem legalem anteriorem 
adhuo hodie potiorem esse special! posteriore conventionali' ; citing 
Holl. Cons., vol. iv, nos. 189 and 392. The words of Art. 35 of the P. 0. 
literally translated run as follows : The effect of general hypothec 
preceding special hypothec. ' And concerning the constitution and 
bond of general hypothec which shall be passed after two months from 
the publication hereof, the same shall in no wise hinder or prejudice 
him who afterwards shall acquire constitution or bond of special 
hypothec, so that he to whom any immovable goods shall be specially 
bound in the said special hypothec and the monies therefrom proceeding 
shall be preferred to him to whom (the property ?) shall be mortgaged 
by general hypothec after the two months aforesaid from the publica- 
tion hereof ; but the aforesaid constitution of general hypothec passed 
before the Court shall have place and take effect against those who have 
like constitution or bond ; under whom the oldest constitution shall be 
preferred to the younger, without in that case, distinction made or 
regard had before what Judges in the said lands the general constitution 
of hypothec shall be passed, and in like manner the general constitution 
aforesaid shall have place and take effect against those who have 
a merely personal action, according to the disposition of the written 
laws.' Van der Keessel says {Th. 437) that a tacit or legal mortgage 
has the same force as a special mortgage and therefore — (a) is preferred 
to a subsequent special conventional mortgage, and to a prior general 
conventional mortgage; (6) is postponed to a prior special conventional 
mortgage (and to a prior tacit mortgage, general or special). But rule 
(a) does not apply if the subsequent special mortgage is a pledge of 
a movable accompanied by possession, or a kusting-brief of an im- 
movable (supra, p. 177, n. 6); and rule (6) does not apply if the legal 
mortgage is privileged or if the legal mortgage over invecta et iUata 
(supra, p. 167) is confirmed by arrest. 

^ This is still the law even at the Cape. Act S of 1861, sec. 9. 



MORTGAGE OR HYPOTHEC 179 

law. Tacit hypothecs take effect from the moment when 
the circumstances exist which give birth to them. 

With the exception noted above of general hypothecs 
of immovables, it makes no difference whether the mort- 
gage is conventional or legal/ general or special. All 
rank in order of time.^ ' Qui prior est tempore potior est 
jure.' General bonds, however, and specific mortgages 
of movables unaccompanied by deUvery, as observed 
above, only bind the property of the mortgagor so far 
as he has not aKenated it. They are, in fact, merely 
a floating charge, which takes effect in the event of the 
debtor's insolvency or death, and attaches only to such 
property as is stiU in his possession at one or other of these 
two dates.* 

The mortgagee is entitled to the possession of the Rights of 
mortgaged property, not, as in Enghsh Law, because ^°l ^^^^^ 
the mortgage has passed the ownership, but because the mortgagor, 
right to possess is considered to be incidental to the 
right of hypothec. By the actio hypothecaria, which is 
a species of vindication, he asserts his right to possess 
against the mortgagor and against every one else except 
a mortgagee with prior or better title.* Not being owner, 
the mortgagee, even if in possession, has no power of 
granting leases. 

In principle there is no reason why a mortgagor should 
not deal with the mortgaged property as he pleases, 
subject to the rights of the mortgagee. But in fact it is 
otherwise. In South Africa he cannot do so. For since 
transfer of land on which a mortgage is registered cannot 
take place without the consent of the mortgagee, without 

1 Gr. 2. 48. 36 ; Voet, 20. 4. 28 ; V. d. K. Th. 437. 

^ According to Voet (20. 4. 19) all the above-mentioned special 
tacit hypothecs are privileged : 'Qui proinde singuliin rebus singularibus 
sibi lege vel more devinctis, vel jure retentionis ante reddita impendia 
facta non restituendis, potiores erunt aliis turn chirographariis tum 
hypothecariis, utcunque hypotheca conventionali expressa vel legali 
sive generali sive speciali aflteriore munitis.' But it seems doubtful 
whether in the modern law any special tacit hypothecs are recognized 
except as rights of retention. 2 Maasdorp, p. 281. 

^ Morioe, English and Roman-Dutch Law (2nd ed.), p. 63. 

« Girard, pp. 777-80. 

N2 



180 THE LAW OF PROPERTY 

his consent the land cannot be alienated. A mortgagor 
is not prohibited from granting a lease, but he cannot 
thereby prejudice the mortgagee's rights.^ The impo- 
sition of a servitude, being plainly prejudicial, is not 
permitted.^ 
Special Any covenants which are lawful and not contrary to 
covenants p^ijjic policy may be annexed to the contract, e. g. : 
inmort- (1) that the destruction of the pledge without fault on 
gages. j^jg pg^j,^ shall free the debtor ; (2) that the pledge shall 
not be redeemed for a certain time ; (3) that if the debt 
is not paid within a certain time the creditor may propria 
auctoritate enter into possession of the mortgaged land ; 
(4) that the creditor is to repay himself out of the rents 
and profits of the land ; (5) that if the debt is not paid 
the creditor (or a surety who pays) may buy the property 
at a fair price ; (6) that the creditor may sell the pledge ^ 
(This right passes to heirs and is assignable) ; (7) that the 
creditor shall take the profits in lieu of interest (antichresis) .* 
An agreement for forfeiture in the event of non-payment 
{pactum commissorium) is not permitted.® 
Enforce- In the Roman Law the mortgagee ultimately acquired 
mortgages.* power of Sale, which could not be excluded by express 
agreement. This right, however, was enjoyed only by a 
first mortgagee.® He could also, in certain cases, obtain 
an order of foreclosure (impetratio dominii)? 

In the Roman-Dutch Law neither of these remedies is 
generally available. Foreclosure is unknown, and sale 
cannot be effected except with the consent of the debtor. 
The proper and only mode of reahzing a mortgage is by 
obtaining a judgment of the Court upon the mortgage 
debt and taking out a writ of execution against the 

1 WaUon V. McHattie (1886) 2 S. A. R. 28 ; Dreyer's Trustee, v. 
Lutley (1884) 3 S. C. 59 ; Reed's Trustee v. Reed (1885) 6 E. D. C. 23. 

2 Stewart's Trustee v. Uniondale Municipality^ (1889) 7 S. C. 110. 
= Voet, 20. 1. 21. 

" Voet, 20. 1. 23. 

= Voet, 20. 1. 25; Cod. 8. 34 (35). 3. pr. (Constantine, a. D. 326); 
Dawson v. EcJcstein (1905) 10 H. C. G. 15. 

« Girard, p. 782, and note 5 ; Cod. 8. 17 (18). 8 
' Girard, pp. 780-4. 



MORTGAGE OR HYPOTHEC 181 

property.^ In South Africa, if the mortgaged property 
is immovable, a special order of Court is required declaring 
the property executable before it is taken in execution.^ 

The mortgaged property may be sold without an order 
of Court with the consent of the debtor ; * but an agree- 
ment for extra-judicial . sale contained in the mortgage- 
deed wiU not be enforced t£ the debtor afterwards objects, 
or if a private sale would be prejudicial to other hypothe- 
cary creditors.* 

If the debtor is insolvent the mortgaged property is 
sold not by the mortgagee, [but by the trustee of the 
insolvent estate.^ 

In the Roman-Dutch Law, differing herein from the 
Roman Law,* a later mortgagee cannot ' redeem or buy 
out an earUer mortgagee against his will so as to step 
into his place.^ But he can do so indirectly, by suing the 
mortgagor and obtaining a sale in execution, in which 

^ 2 Maasdorp, p. 298. For Ceylon see Civil Procedure Code (Ord. 
No. 2 of 1889), sees. 640 ff. 

^ See cases cited by Maasdorp, libi sup. Semble, by R.-D. L. this 
was required in all cases ; not in the case of immovables alone. Voet, 20. 
5.3. 

^ Voet, 20. 5. 6 (and authors there cited). Nemini licet hodie 
privata auctoritate pignus vendere invito debitore, licet id ita ab 
initio fuisset actum, sed impetrata sententia condemnatoria pignus 
subhastatur auctoritate judicis. Voet, Compendium, 20. 5. sec. 8. 
Van der Keessel, however (Th. 439), says that a pledgee may sell a 
pledge which has been delivered to him, if it was stipulated ab initio 
that he might sell it ; or rather, says Lorenz (ad loo.), where there has 
been no stipulation to the contrary. 

* 2 Maasdorp, ubi sup. In Insolvent Estate Evans y. S. A. Breweries, 
Ltd. (1901) 22 Natal Law Reports, at p. 126, Mason A. C. J. said : 
' Voet (20. 1. 21) lays down, and innumerable cases in South African 
Courts, and the unbroken practice in Natal for a very large number 
of years have decided conclusively, so far as this Court is concerned, that 
the mortgagee is entitled to exercise the right of selling the mortgaged 
property if conferred upon him by the instrument of mortgage.' 
But the Witwatersrand High Court took the opposite view in John v. 
Trimble [1902] T. H. 146. The authorities are collected in the above- 
named cases. See also Kotz6's Van Leeuwen, vol. ii, p. 407 n. 

* Maasdorp, vbi sup. * Cod. 8. 17 (18). 1 et passim. 

' Van der Keessel (Th. 441) merely says 'an possit, non sine caussa 
dubitari potest.' 

* But he (or any one else) may, by agreement, take an assignment 
of the mortgage. Gr. 2. 48. 43 ; Voet, 20. 4. 35 (and authorities there 
cited). 



182 THE LAW OF PROPERTY 

event he will have the same right as any one else^ of making 
a bid for the purchase of the mortgaged property.^ When 
property is sold in execution it is the practice to pay the 
purchase-money to the judgment creditor only on condi- 
tion of his giving secm:ity de restituendo in the event of 
prior claims emerging. Thus, if a second or later mortgagee 
seUs, the prior encumbrancer is secured against loss. The 
pxirchaser on the other hand gets a good title.' 



APPENDIX A 

Rights of the Public and of the Crown in 
THE Seashore 

The rights of the public "and of the Crown respectively in 
the shore lying between high and low water are scarcely settled 
by authority. In Anderson and Murison v. Colonial Govern- 
ment (1891) 8 S. C. 293, Sir Henry de VilUers C.J. said: 
' Upon the cession of this Colony to the English Crown the 
laws of the country were retained. Under these laws the 
public had the right to the free use of the seashore as I have 
defined it (viz. the land between high and low water marks), 
and it is no more in the power of the Government than it is 
of any private individual to deprive the public of that right. 
No doubt the Government are, in one sense, the custodians 
of the seashore, but they are such only on behalf of the 
public. They may, as Voet points out (1. 8. 9), grant per- 
mission to individuals to build upon the seashore, and without 
that permission no one is at liberty so to build ; but that 
permission is, I take it, subject to the condition that the rights 
of the public shall not be interfered with. Any structure 
between high and low water marks, which materially interferes 

1 Secus, jure civili. Voet, 20. 5. 3. 

2 2 Maasdorp, p. 301. 

3 Voet, 20. 5. 11. Van der Keessel says {Th. 442) that the mere 
knowledge of a creditor that property mortgaged to him is being sold, 
even though by public auction, is not to be taken as a tacit remission 
of his mortgage. 

A mortgage is lost by prescription, if a third party has been in 
possession for thirty years, or the debtor (or his heir) for forty years 
without payment of interest (V. d. K. Th, 443). 



APPENDIX A 183 

with the general use of the shore, whether constructed with 
orwithoutthe consent of the Government, wouldbe a nuisance, 
which this Court would be justified in restraining.' Mr. Justice 
Buchanan concurred. In the later case, however, of Colonial 
Government v. Gape Town Town Council (1902) 19 S. C. 87, 
the Chief Justice seems to place the right of the Crown upon 
a higher plane when he says : ' The Crown is not the owner 
of land adjoining the coast and covered by the sea in the 
same sense that it owns Crown Lands above high water mark, 
but it enjoys the supreme right of control which carries with 
it the right of claiming the ownership of the land itself, 
whenever the land ceases to be covered by water.' 

If the Chief Justice is right, the Crown is not the owner of 
the shore between high and low water mark, though, according 
to his later view it may easily become owner. But a different 
conclusion is suggested by the Dutch authorities who follow 
the feudal law in referring all res publicae to the head of 
Regalia with the consequence, it is submitted, that such things 
must be regarded as the property of the Crown. Thus Voet 
writes (1. 8. 9 ad fin.) : ' Caeterum, quia moribus nostris et 
aliarum gentium maris littora et fiumina Regalibus seu 
Domaniis Prineipum adnumerantur, lib. 2, feudorum, tit. 56; 
non ita si navigationem et ejus sequelas excipias communis 
omnibus usus est, neque piscari retibus in flumine cuique 
licet, multoque minus extra ripae munitionem aedificare in 
fundo fluminis, aut in maris littore, aut aquam ducere ex 
flumine aut exstruere molendina, nisi nominatim id a Principe, 
vel eo, cui demandata dominiorum cura, concessum fuerit ; 
sic ut iUa veniae impetratio, quae ex jure Romano prudentiae 
erat, nunc absolutae necessitatis sit.' 

I have found little direct authority for the proposition that- 
the seashore, specifically, comes under the head of Regalia ; 
but numerous writers assert the general principle that in the 
modern law res communes and res publicae fall under this 
category. See, for example, Heineccius, Elem. Jur. Civil., Arts. 
325 and 328; and Elem. Jur. German., lib. ii, tit. 1, sec. 16; 
Leyser, Meditationes ad Pandectas, vol. i, p. 256. (In Monar- 
chiis omnes publicae res ad regalia referimtur) ; Stockmans, 
Decis. Brabant., no. 85 ; Zypaeus, Notit. Jur. Belg., lib. x, 
sec. de jure fisci (Res Communes, flumina, viae, aliaeque 



184 THE LAW OF PROPERTY 

Regiae factae sunt). In Ceylon Bumside C. J., in Attorney- 
General V. Pitche (1892) 1 S. C. R. 11, said : ' Assuming for the 
purpose of this case that the foreshore ... is the property 
of the Crown, it is assuredly a right not in general for any 
beneficial interest to the Crown itself, but for securing to the 
public its privileges between high and low water mark, and 
the Crown itself could do no act to interrupt those privileges. 
. . . And if the Crown itself is incapable of doing so, it could 
not empower others by any means whatever, whether it be 
by grant, or lease, or licence, to do so.' On the other hand, in 
Rowel Mudaliyar v. Pieris (1895) 1 N. L. R. 81, Lawrie A.C.J, 
held that it was competent to the Crown by its regularly 
appointed agents to grant licences to fishermen to spread 
their nets on the seashore or on land belonging to the Crown 
adjacent to the shore, and to charge a rent in respect of such 
licences. But it appears from the report that the land in 
question was land bordering the foreshore ; and Ord. No. 12 
of 1911, which empowers the Governor to proclaim any part 
of the seashore of the Island as an area from which no sand or 
other substance may be removed without licence, seems by 
implication to negative the Crown's right of property in the 
shore. Perhaps the question was not very fully considered. 



APPENDIX B 

The System of Conveyancing in British Guiana 

By W. J. Gilchrist, Esq., of Gray's Inn, Barrister-at-Law, 
Stipendiary Magistrate, British Guiana. 

Transfer of Immovables. Sale. Lease. Mortgage. 

Sale. The transporter gives written instructions to the 
Registrar to advertise transport of property to and in favour 
of purchaser. An advertisement is then inserted to this 
effect in the Official Gazette for three successive Saturdays. 
Transport may be passed before one of the Judges of the 
Supreme Court on any day after the third publication. The 
title-deeds of the property accompanied by an affidavit must 
have been previously deposited with the Registrar for examina- 



APPENDIX B 185 

tion and to establish the right of the transporter to transport 
the property. The seller and purchaser must each file an 
affidavit or declaration as to the purchase price of the property. 
If everything is in order and no opposition has been entered 
in the Record Book kept for such purpose, the parties appear 
before the Judge and sign the deed of transport prepared by 
the Registrar. The. Judge also signs the deed and the Record 
Book. The deed is filed in the Registrar's office and a grosse 
signed by a Sworn Clerk and given to the purchaser is accepted 
in all Courts as his title to the property. Office fees are 
charged ; also stamp duty on the consideration. Should 
transport not be passed within three months, readvertisement 
as above becomes necessary. The procedure is laid down by 
rules of Court. See Ghangadoo v. Bamswamy (1890) 1 Brit. 
Gui. L. R. (N.S.), at p. 237; Hogg v. Butts (1893) 3 Brit. 
Gui. L.R. (N.S.), 88. 

Lease. By the practice of the Colony leases for ten years 
and upwards are treated as alienations and must be judicially 
executed. The same applies to servitudes. 

It seems that a lease for however short a term is not safe 
against a purchaser. In Huree v. Bascom (1860) 2 Brit. 
Gui. L.R. (O.S.), 37, defendants were proprietors of 'Good 
Success'. PlaintifE claimed three fields under a lease from 
former proprietors, and tendered evidence to show that at 
the time of transport it was agreed that the rights of lessees 
should be respected. No lease was reserved in the transport. 
The evidence was held inadmissible as the effect would 
be to vary the transport. The Court said, ' The plaintiff, if 
he had chosen, might have opposed the transport unless his 
rights were recognized and reserved expressly in it '. 

Mortgage. The mortgagor gives written instructions to the 
Registrar to advertise the mortgage in favour of the mort- 
gagee. This is done as in the case of transports. The mortgage 
may be special, that is charged upon a particular property ; 
or general, that is charged upon all the property of the 
mortgagor movable and immovable ; or both special and 
general. 

The title-deeds of immovable property in the case of a special 
mortgage is deposited with the Registrar for examination. In 
the event of no opposition the parties appear before the Judge 



186 THE LAW OF PROPERTY 

and sign the deed, which is prepared by the mortgagor, or 
at his instance by the Registrar on payment of a fee. The 
Judge signs the deed and the Record Book. The deed is 
filed in the Registrar's Office and a grosse given, as in the case 
of transports, to the mortgagee. 

Office fees and stamp duty are charged on the amount of 
the deed. The mortgage deed is, as a rule, prepared by 
the mortgagor. 

Should the mortgage not be passed within three months, 
readvertisement is necessary. 

As to general conventional mortgages see In re da Silva, 
(1904) Brit. Qui. Off. Qaz., vol. xx, p. 843. 

Enforcement of mortgages. In British Guiana a mortgage is 
realized by writ of execution after judgment of the Court. 
The Court's judgment limits the right to levy on the property 
mortgaged if the action is in rem ; if in 'personam the judg- 
ment gives the right to levy execution — ^this being granted 
first on the mortgaged property, and secondly on the 
general estate of the mortgagor. To entitle the mortgagee 
to priority he must levy on the mortgaged property. 

The creditor before proceeding to execution on the general 
property must make an affidavit in the terms required by the 
Rules of the Supreme Court. 

The ownership in property purchased at an execution sale 
does not vest in the purchaser until he has paid the whole of 
the purchase-money. Ex parte Oukama, re Provost Martial, 
(1891) 1 Brit. Gui. L. R. (N. S.) 328. 

It is worthy of remark that the transport system in British 
Guiana is not, as might be expected, an institution of Dutch 
origin. It was not until the British occupation that it became 
requisite to advertise transports and mortgages intended to 
be passed. The practice was introduced by an order of the 
Court of Justice dated May 7 and published May 16, 1807. 
(Records of British Guiana, by Mr. N. Darnell Davis, C.M.G. 
Timehri, vol. ii, N. S., p. 339.) 



BOOK III 
THE LAW OF OBLIGATIONS 

From the law of property, or real rights, we pass to the The 
law of obligations or personal rights. A real right, as we ^^'^o^- 
have seen, constitutes a claim which the law will sustain gation '. 
against any and every invader. It is a right against aU 
the world. A personal right, on the contrary, is a right 
against some specific person and against him alone. 
When between two persons such a relation exists that the 
one is legally entitled to demand from the other some 
specific act or forbearance, such relation is termed an 
obhgation. When we say that one person is legally en- 
titled we imply that the other person is legally bound or 
obhged. Accordingly, Justinian defines obligatio as ' juris 
vinculum quo necessitate adstringimur ahcujus solvendae 
rei secundum nostrae civitatis jura ' ^ — ' Obhgation is 
a legal fetter by which we are bound with the necessity 
of performing some matter in terms of the laws of our 
country.' Any giving, doing, or forbearing, may be the 
subject-matter of an obhgation,^ provided only that it 
be something possible and not contrary to law.* From obliga- 
legal obhgations as defined in the last paragraph, or ' civil *'^^'^'^'' 
obfigations ', as they are specifically called, the Roman and 
lawyers distinguished ' natural obhgations '. These are "^ ^^ 
personal claims founded not in law, but in morahty,* 
e.g. the claim of a father to receive services of duty and 
affection from his children. More precisely, the phrase 
' natural obhgation ' was hmited to claims which, while 
not enforceable by action, were, nevertheless, available as 
a defence and had certain other important consequences 

1 Inst. 3. 13 pr. ^ Voet, 44. 7. 1. 

« Voet, 2. 14. 16. * Voet, 44. 7. 3. 



188 THE LAW OF OBLIGATIONS 

in the field of positive law.^ In the modern law this 
distinction has lost much of its former significance. 
How A legal bond or obhgation between two persons may 

°.^^'sa- . a^pjgg in many different ways. These have been variously 
classified by the jurists. We adopt as most convenient the 
arrangement chosen by Gaius in his book called Aurea, 
or Golden Words.^ According to this, obligations arise : 
(1) from agreement ; (2) from wrongdoing ; (3) from 
various other causes. This arrangement we shall follow, 
and discuss obligations under the three heads of Con- 
tractual, Delictual, and Miscellaneous. 



PAET I 

OBLIGATIONS ARISING FROM CONTRACT 

The The subject-matter of the law of contract is in all 

of con-'°° legal systems the same, viz., agreements and promises. 

tract. What agreements, what promises wiU the law enforce ? 

This is the problem to be solved, and it is solved by 

different systems of law in different ways. But the 

definition of contract in the abstract is always the same, 

viz. ' an agreement enforceable at law ' or, what comes 

to the same thing, ' an agreement which creates an 

Contracts obligation between the parties to it.' An agreement 

^■^ • which produces this effect is a contract ; an agreement 

valid, which fails to produce this effect, however much it may 

void, be intended to do so, is a void contract, i. e. no contract 

at all.^ Sometimes the agreement has in law the effect 

that it lies in the option of one of the parties whether he 



^ Voet, uii sup. 

^ Obligationes aut ex contractu nascuntur aut ex maleficio aut 
proprio quodam jure ex variis causarum figuris. Dig. 44. 7. 1 pr. 

^ Or we may, if we please, define contract as ' an agreement which 
creates or is intended to create a legal obligation between the parties 
to it ' (Jenks, Digest of English Civil Law, § 182). This will permit 
us without abuse of language and in harmony with common usage 
to speak of a 'void contract ', i. e. a contract which is intended to create, 
but does not create, a legal obligation between the parties. 



OBLIGATIONS ARISING FROM CONTRACT 189 

will be bound by it, or not. In that case it is said to be 
voidable by such party. Agreements directed to illegal 
ends are usually void ; agreements procured by fraud 
or menace are usually voidable. Instances will be given voidable. 
in the following pages. 

From what has been said it is apparent that the law There is 
of contract is concerned not with all agreements, but only tract un 
with such agreements as are intended to create an obhga- less tiie 
tion between the parties. If the parties do not wish to intend to 
be bound the law -will not bind them.-^ Therefore no legal "ontraot. 
consequence attaches to words spoken and understood 
as a jest,^ nor to agreements for the performance of 
something patently impossible,^ for they cannot be sup- 
posed to have been seriously intended.* 

In discussing the law of contract we shall have to Divisions 
consider: (a) the formation of contract, i.e. the conditions of con- *^^ 
of its existence ; (h) its operation or effect ; (c) its inter- tract. 
pretation ; (d) its determination. These topics wiU form 
the subject of the following chapters. 



CHAPTER I 

FORMATION OF CONTRACT 

To constitute a vahd contract : (A) the parties must Tlie 
be agreed ; (B) the requisite forms or modes of agree- o^^^^aUd 
ment (if any) must be observed ; (C) the agreement must contract, 
not have been procured by fraud, fear, misrepresentation, 
or undue influence ; (D) the agreement must not be 
directed to an illegal object ; (E) the parties must be 
competent to contract. 

^ Pothier, Traite des Obligations, sec. 3. The generality of this state- 
ment must be qualified to the extent of admitting that a person may 
in certain cases have acted in such a way as to induce another to 
believe that he intended to contract with him, and may be estopped 
from denying that his apparent intention corresponded with his real 
intention. 

2 Vinnius ad Inst. 3. 14. 2, sec. 11 ; Van Leeuwen, 4. 1. 3. 

3 Gr. 3. 1. 19 and 42 ; Voet, 2. 14. 16 ; 45. 1. 5 ; V. d. L. 1. 14. 6. 
* Voet, 28. 7. 16 ; Vinnius, m6j sup. 



190 THE LAW OF OBLIGATIONS 

Sectiok I 

The parties must he agreed. 

A. Agree- The nature of agreement is explained in many well- 
ment. known works. We are here concerned with the modes 
agrre- in which agreements are concluded and with some cir- 
mentsare cumstances in which agreement is absent. Agreement 
usually results from the acceptance of an offer, or from 
the reply to a question. Thus, if I say ' I offer to buy your 
horse for £50 ' ; and you answer ' Agreed ' ; the contract 
is complete, from the moment that your answer makes 
known to me your acceptance of the offer made to you.^ 
So, if I say ' Will you sell me your horse for £50 ? ' and 
you answer ' I will ' ; there is a contract completed by 
your answer, expressing a willingness to sell, given ia 
reply to my question expressing a willingness to buy. 
In Roman Law the contract known as the stipulation was 
normally expressed in the form of question and answer. 
In Roman-Dutch Law neither offer and acceptance, nor 
question and answer are indispensable, but any expression 
of a common intention, whether conveyed by spoken or 
written words, or by conduct, or partly by words and 
partly by conduct, will constitute an agreement which 
(other necessary conditions being satisfied) the law will 
enforce.^ But without union of minds there can be no 
agreement.* Therefore, a mere declaration of intention 
not intended to be assented to * or not yet assented to, or 
a mere offer unaccepted, is destitute of legal consequences.' 

^ The general rule is as stated in the text. But in the case of accep- 
tances through the post actual communication to the offeror is not 
indispensable (see next page) ; and the offer may in some cases, from 
its nature or by express terms, dispense with communication of accep- 
tance. ^ Van Leeuwen, 4. 3. 1. 

3 Rose Innes D. M. Co. v. Central D. M. Co. (1884) 2 H. C. G. 272. 

." Gr. 3. 1. 11. 

5 Gr. 3. 1. 48 ; Van Leeuwen, 4. 1. 3. Grotius says that a pollicitation 
made in God's honour or ex praeoedenti causa for public purposes 
is binding. This is taken from the Civil Law (Dig. 50. 12. 1. 1 and 
1. 2). But it scarcely holds good to-day. Such a pollicitation, however, 
if accepted, might be binding as an actionable pact or contract. See 
Groen. de leg. abr., ad loc. 



FORMATION OP CONTRACT 191 

To such unilateral declarations of intention the Roman 
lawyers gave the name of ' pollicitation '} Since an un- 
accepted offer does not bind the offeror until acceptance, 
before acceptance it may at any time be revoked.^ Once 
accepted, it becomes irrevocable. An offer, if not accepted 
within the time specified for acceptance or, where no time 
is specified for acceptance, within a reasonable time, 
lapses,^ and ipso jure determines in the event of the death 
of the offeror * or offeree before acceptance. 

In the case of negotiations through the post, or by Contracts 
other such medium of correspondence, it is often matter through 
of importance to determine whether and when a contract tiie post, 
has been concluded. Suppose, for instance, an offer made 
through the post and an acceptance posted which never 
reaches the offeror, or reaches him late. Can it be said 
that the offer has been accepted ? Enghsh Law is now 
settled in the sense that the posting of a letter of accep- 
tance concludes the contract, so that both parties are from 
that moment bound. Modern decisions upon the Roman- 
Dutch Law incline to the same view.® Voet's view seems 
to be that the contract is concluded when and where 
the letter of acceptance reaches the offeror, ' ubi Hterae 
negotium concludentes acceptatae sunt ' ^ — ' where the 
letter concluding the contract is received '. 

The acceptance of railway tickets, cloak-room tickets The 
and the like has raised the same difficulties in modern orrailwaT 
Roman-Dutch Law as in Enghsh Law, and with similar tickets, &c. 
results. A party is bound if he has had a reasonable 

^ Pothier, sec. 4; Gr. 3. 1. 11 and 48. Grotius renders poUicitatio 
by ' belofte '. An offer intended to be accepted is ' toezegging '. 

^ This applies particularly to a promise to keep an offer open, e. g. 
an option to purchase. So decided in Cape Colony in Garvie <fc Co. 
Y. Wright and Donald (1903) 20 S. C. 421, on the ground of want of 
consideration ; but query whether this decision is in accordance with 
the principles of R.-D. L. 

3 Gr. 3. 1. 48 ; Van der Linden, translation of Pothier, Traite des 
Obligations, p. 9, note. 

* Voet, 6. 1. 73. 

5 Naude v. Malcolm (1902) 19 S. C. 482 ; Fern Gold Mining Co. v. 
Tobias (1890) 3 S. A. R. 134 ; Bal v. Van Staden [1902] T. S. 128 ; 
3 Maasdorp, p. 32. ^ Voet, ubi sup. 



192 



THE LAW OP OBLIGATIONS 



Effect of 
agreement 
to reduce 
contract 
to writing. 



No con- 
tract 
where 
agreement 
is vague 
or un- 
certain. 

Effect of 
mistake. 



Mistake 
of law. 



opportunity of acquainting himself with the contents.^ 
Sometimes it is agreed between the parties that their 
contract shall be reduced to writing. Whether they are 
bound independently of the writing or not before the 
contract has been written down is in each case a question 
of fact.^ 

There is no agreement if it is left to one of the parties 
to perform or not, as he chooses : ' nulla promissio potest 
consistere quae ex voluntate promittentis statum capit ' ; ' 
nor if the subject-matter of the negotiations is so vague 
that its meaning cannot be ascertained.* 

Without union of minds there is no agreement. Mistake 
excludes agreement.^ ' Non videntur qui errant consen- 
tire.' ^ ' NuUa voluntas errantis est.' ' It is important 
to distinguish and determine the different ways in which 
mistake affects contract. 

Mistake consists in a misapprehension as to the existence 
or non-existence of a fact or state of facts. All mistake 
is mistake of fact. But a mistaken belief that a rule of 
law exists or does not exist is distinguished from other 
mistakes of fact and is called specifically mistake of 
law.* With regard to this the maxim applies 'juris 
ignorantiam cuique nocere ' ; * which means that no one 



1 Peard v. Rennie & Sons (1895) 16 N. L. B. 175; Central South 
African Railways v. McLaren [1903] T. S. 727. 

2 Voet, ubi sup. ; Noel v. Green (1898) 15 C. L. J. 282 ; Richards v. 
Mills (1905) 15 C. T. B. 447. 

3 Dig. 45. 1. 108. 1 ; Van Leeuwen, 4. 3. 5 ; Voet, 44, 7. 1. 
' V. d. L. 1. 14. 6. 

5 Gr. 3. 1. 19 ; 3. 14. 4; V. d. L. 1. 14. 2. 

" Dig. 50. 17. 116. 2. ' Dig. 39. 3. 20. » Voet, 22. 6. 1. 

" Dig. 22. 6. 9. 1: (Paulus) Begula est juris quidem ignorantiam 
cuique nocere, facti vero ignorantiam non nocere. An exception may 
perhaps be admitted when a law is of merely local application, in favour 
of a stranger to the locality. Voet, 22. 6. 2. Some indulgence is 
allowed to minors and women. Voet, 22. 6. 3. The question has 
been much debated whether ignorantia juris excludes the condictio 
indebiti. Voet (12. 6. 7) held that it does, dissenting from Vinnius 
(Select. Quaest. I. 47). Grotius (3. 30. 6) is of the same opinion as 
Vinnius, but his commentator Schorer agrees with Voet, and Van 
der Keessel (Th. 796) inclines to the same view. See Rooth v. The 
State (1888) 2 S. A. R. 259, where all the authorities are collected in 
Kotze C. J.'s learned judgment. 



FORMATION OF CONTRACT 193 

can excuse himself from performance of a contract by- 
alleging that he would not have entered upon it but for 
some mistaken behef as to the existence or non-existence 
of a rule of law.^ As distinct from mistake of law, mistake Mistake 
of fact often affects the vahdity of a contract, and that °^^^°^- 
in various ways. The mistake may be common to both 
parties, that is both may labour under the same mistake; 
or it may be mutual, that is each may misapprehend 
the intention of the other. Where the mistake is common 
to both parties it usually happens either that the mistake 
consists in common error as to some fact, but for which 
error the parties would not have contracted,^ or that the 
parties are in fact agreed, but the writing to which they 
have reduced their agreement fails to express their real 
meaning. In the first case the contract coUapses from 
its foundation and is destitute of legal effect. An instance 
is when the parties have contracted for the purchase and 
sale of something which in fact does not exist.* In the 
second case the Court wiU decree rectification or cancel- 
lation of the instrument.* When the error is mutual, 
each side being under a misapprehension as to the inten- 
tion of the other, different considerations apply. The 
question then is ' Who is in fault ? ' A man, it may be 
argued, is responsible for his own mistakes. If you have 
in terms contracted with me, why should you escape 
performance on the ground of an error to which I have 
not contributed ? This argument so far carries weight 
that a person seeking to treat a contract as void on the 
ground of mutual mistake cannot succeed unless his 

^ Ignorance of law means ignorance of a rule of law. Ignorance of 
one's own rights is not necessarily ignorance of law. Cf. Umhlebi v. 
Umhlebi's Estate (1905) 19 E. D. C. 237. 

^ The common error may, however, relate only to a term in the 
contract. Van der Byl v. Van der Byl <fc Co. (1899) 16 S. 0. 338, in 
which case the defendants were offered the alternatives of rectification 
or cancellation. 

^ Gr. 3. 1. 42. The contract may also be said to be void on the 
ground of impossibility of performance. 

* Port Elizabeth Harbour Board v. Mackie, Dunn <Si Co. (1897) 14 
S. C, per de Villiers C. J. at p. 479. 

1713 O 



194 



THE LAW OF OBLIGATIONS 



has no 
effect 
unless 
' reason- 
able '. 
DifEerent 
kinds of 
mistake. 



Mistake 
as to 
quality. 



Mistake 
as to the 
person. 



mistake was reasonable {Justus— prdbdbilis),'^ i.e. not 
imputable to his own carelessness. If he can do so the 
contract will be held void for want of the essential con- 
dition of agreement between the parties. This applies 
whether the mistake relates : (a) to the nature of the trans- 
action ; ^ or (6) to the identity of the subject-matter ; ^ or 
(c) to the quality of the subject-matter ; * or {d) to the 
identity of the other party to the supposed contract.' 
With regard to mistake as to the quality of the subject- 
matter everything turns upon the question, what was the 
agreement between the parties.^ ' Videamus quid inter 
ementem et vendentem actum sit ' says Julian in the 
Digest.' Thus, if the contract was for the sale of these 
candlesticks, it is immaterial that you, the purchaser, 
thought them to be silver when in fact they were plate. 
You have got what I agreed to seU and you agreed to 
buy. The fact that you were mistaken as to the quality 
is irrelevant to the contract. But if you mistakenly 
supposed that I was contracting to seU you ' silver candle- 
sticks', when, in fact, I intended only to sell 'candlesticks', 
and if your error was not imputable to your own care- 
lessness,® the contract would be void for want of consensus 
as to its essential terms. If, again, both parties believed 
the candlesticks to be silver and contracted for the 
purchase and sale of ' silver candlesticks ' the contract 
would be void on the ground of common error as explained 
above. Mistake as to the person with whom one contracts 
renders the contract void except where the individuality 

1 Voet, 12. 6. 7 ; 22. 6. 6 ; Logan v. Beit (1890) 7 S. 0. at p. 216 ; 
Merrington v. Davidson (1905) 22 S. C. 148. 
" Pothier, sec. 17. 
' Ibid. ; Maritz v. Pratley (1894) 11 S. C. 345. 

* Pothier, sec. 18. ^ Pothier, sec. 19. 
^ Pothier, sec. 18. 

' Dig. 18. 1. 41 pr. Cf. Code Civil, sec. 1110 : L'erreur n'est une 
cause de nullite de la convention que lorsqu'elle tombe sur la substance 
meme de la chose qui en est I'objet. B. W., Art. 1358 : Dwaling 
maakt geene overeenkomst nietig dan wanneer dezelve plaats heeft 
omtrent de zelfstandigheid der zaak welke het onderwerp der overeen- 
komst uitmaakt. 

* If it were so, you -would be liable qwisi ex contractu, Pothier, sec. 19. 



FORMATION OF CONTRACT 195 

of the other party is unimportant.^ Thus, where an order 
is sent to one tradesman and in error executed by another, 
in the absence of special circumstances the goods must be 
paid for, though the purchaser may have been under 
a misapprehension as to the person who supphed them. 

A contract procured by the fraud of a third party is Mistake 
null and void if the circumstances are such as to exclude '^^ fraud, 
consent. The same principle would seem to apply to a 
contract procured by the fraud of one of the contracting 
parties, if the fraud is of such a character as to exclude 
any consensus whatever ; e. g. when a man is deceived as 
to the nature of the transaction. Certainly, in such a case 
he would have no contracting mind.^ 

The effect of mistake, where it operates, being to render Property 
the contract void, not voidable, property ahenated under u^^er ^ 
mistake can be recovered even from bona fide possessors, mistake. 
It is, however, not unusual to take active steps to protect 
oneself against habihty by applying to the Court for 
cancellation or rescission of the contract, and this is par- 
ticularly matter of prudence when the contract is expressed 
in writing. 

Section II 

The requisite forms or modes of agreement, if any, must b. Re- 
be observed. i"""f 

ments 

The historical development of the law of contract 
follows substantially the same course in the various legal 

"■ Pothier, vhi sup. It seems more consonant with principle to state 
the rule thus than conversely, as in the Code Civil, sec. 1110 : (L'erreur) 
n'est point une cause de nullite lorsqu'eUe ne tombe que sur la personne 
avec laquelle on a intention de contraoter, a moins que la considera- 
tion de cette personne ne soit la cause principale de la convention. 
B. W., sec. 1358 : Dwaling is geene oorzaak van nietigheid indien zij 
aUeenlijk plaats heeft omtrent den persoon met wien men voornemens 
is te handelen, tenzij de overeenkomst voornamelijk uit aanmerking 
van dezen persoon zij aangegaan. 

^ In this case the duty seems to be rather quasi-contractual than 
contractual. 

^ In both the cases mentioned in this paragraph the statement in 
the text is subject to the qualification that the fraud in question must 
not be imputable to the negligence of the defrauded party. Standard 
Bank v. Du Plooy (1899) 16 S. C. 161. 

02 



of form. 



196 THE LAW OP OBLIGATIONS 

systems known to us. In a primitive society few promises 
are enforced by law, and only upon condition of their 
being accompanied by some solemnities of form or expres- 
sion, which serve to mark their serious character and 
to distinguish them from the mass of agreements and 
promises of which the law in its initial stages fails to take 
account/ Later, the categories of actionable agreements 
are multiplied, or the conditions of enforceability made 
more simple. Lastly, a stage is reached in which all 
agreements intended to create legal relations, contracted 
by competent persons for lawful objects, are upheld by the 
tribunals. It may be, however, that the law still requires 
that all agreements indifferently should satisfy some 
condition which is taken to be the test of the serious 
intention of the parties. It may be, further, that for 
special reasons some kinds of agreement are stiU required 
to be expressed in writing or in solemn written form. 
Contracts The Roman Law, as is weU known, was far from enforcing 
Law. 3-11 agreements. In Justinian's system only the following 
classes of agreement were actionable, viz. : (1) real 
contracts, nominate and innominate ; (2) stipulations ; 
(3) the. four consensual contracts ; (4) certain pacts, 
which had at various times and in various ways been 
clothed with actionability, and thus become contracts in 
everything but name. 
Pacta All other agreements remained bare pacts (pacta nvda). 

They could not be enforced by action, but might be 
pleaded by way of exception.^ ' Nuda pactio obligationem 
non parit sed parit exceptionem.' ^ The stipulation in 
its latest stages was almost always reduced to writing, so 
that it is substantially true to say that in Justinian's law 
any agreement whatever would be enforced provided that 
it was expressed in a written instrument, but other agree- 
ments only if they fell within certain known classes, or 
i4 one party had performed his part and was demand- 
ing corresponding performance from the other. 

^ Maine, Ancient Law, p. 327. ^ q,. ^ i_ gi_ 

' (Ulpian) Dig. 2. 14. 7. 4. 



nuda. 



FORMATION OF CONTRACT 197 

The ancient Dutch Law has been partly made known to Contracts 
us by the researches of Professor Fockema Andreae and early^ 
other scholars. It may be, as Grotius and others assert, Dutch 
that the Germans of old attached the highest importance 
to the duty of keeping faith,^ but it was not the case that 
every promise was legally enforceable. Here, as elsewhere, 
the history of the law of contract is the history of a slow 
transition from form to formlessness.^ 

In the Roman-Dutch Law — ^the system derived from Contracts 
the two above-named sources — ^the process of develop- Dutoh^^"' 
ment, aided, as some think, by the influence of the Canon Law. 
Law,* has reached its furthest hmit. The phraseology 
of the Roman Law is retained, but it has ceased to corre- 
spond with facts. It is no longer necessary that an agree- All 
ment should be referable to any specific head of contract <=°°*''^<=ts 
or actionable pact, for by the Roman-Dutch Law aU sensual. 
contracts are consensual,* and any pact whatever is 
enforceable ® provided only that it is freely entered upon 
by competent persons for an object physically possible 
and legally permissible. ' If I have to consult the law of Decker 
our own fatherland,' says Mr. C. W. Decker ® in a weU- easeutiala 
known passage, 'I merely consider: (1) whether the of con- 
persons were capable of binding themselves ; (2) whether 
the agreement was made deliberately and voluntarily ; 
(3) whether it has a physical and moral possibility or 
reasonable cause. If these essentials concur, I say with 
safety that a valid action for performance arises.' 

From the above description of the essential elements Roman- 
of contract it is apparent that the Roman-Dutch Law pays l^w ^ 
no attention to the formal requirements of the Roman requires 
Law. It is equally a stranger to the English requirement form ^"^ 
of Form or Consideration. Whether a long course of nor con - 

sidera- 

1 Gr. 3. 1. 52 ; Heineccius, Elem. Jur. Oerm., lib. ii, sees. 330-1. tion. 

^ Fock. And., vol. ii, pp. 1 ff. 

' Vinnius, -De paciis, cap. vii, sec. 5 ; Voet, 2. 14. 9. 

* Heineccius, Elem. Jur. Germ., lib. ii, sec. 345 ; J3eoker ad Van 
Leeuwen, 4. 2. 1, n. 1. 

5 ' Moribus hodiemis ex nudo pacto datur actio.' Groenewegen, de 
leg. abr. ad Inst. 3. 20 (19). 19 ; Gr. 3. 1. 52 ; Voet, ubi sup. 

" Van Leeuwen, 4. 2. 1, n. 1 (Kotze's translation, vol. ii, p. 10). 



198 THE LAW OF OBLIGATIONS 

judicial decision has introduced the English doctrine of 
consideration into the legal system of any of the Roman- 
Dutch colonies is a question with which we are not here 
immediately concerned. It may be asserted with some 
confidence that this doctrine did not form part qf the 
Roman-Dutch Law of Holland. The late Lord de Villiers, 
indeed, on more than one occasion, judicially advanced 
the view that in the Roman-Dutch Law every contract 
The must be based upon some reasonable cause (redelijk 

of causa oorzook), and that reasonable cause, as understood and 
"^ apphed by the Dutch lawyers, was in effect indistinguish- 

oorzaak. able from the ' quid pro quo ' which passes for considera- 
tion in English Law.^ But other persons of eminent 
authority do not accept this identification, which is, 
indeed, historically improbable ; and, further, it may be 
doubted whether the doctrine of causa really occupied 
the important place in the Roman-Dutch Law which has 
been assigned to it in recent discussions.^ It is probable 
that when Grotius,^ Van Leeuwen,* Huber,^ and Van der 
Keessel ^ require that a contract should have a reasonable 
or just cause, they imply httle more than Voet ' and 
Vumius * when they say that an agreement to be legally 
enforceable must be entered upon with a serious and 
deliberate mind. Decker, then, is quite correct when he 
makes reasonable cause equivalent with ' physical and 
moral possibihty '. Finally, Van der Linden reduces 
causa to its proper compass when he says : ' Contracts are 
also nuU and void whenever they have no cause at all, 

^ For the South African case law on the subject the reader should 
refer to Maasdorp, Institutes of Cape Law, vol. iii, pp. 46 ff. See in 
particular the Cape case of Mtemhu v. Webster (1904) 21 S. C. 323, 
and the Transvaal case of Rood v. WalUich (1904) T. S. 187. For 
Ceylon see Lipton v. Bwhanan (1904) 8 N. L. E. 49, and (1907) 10 
N. L. R. 158. The British Guiana case of De Cairos v. Oaspar (1904) 
Off. Oaz., vol. xix, p. 1274, is nihil ad rem. 

^ The doctrine of causa is in fact a juristic figment. I am glad to 
find this view confirmed by Prof. Marcel Planiol {Traite elementaire de 
droit civil (6th ed.), vol. ii, pp. 342 fi.). 

3 Gr. 3. 1. 52-3. « Van Leeuwen, 4. 1. 4-6. 

^ Huber, Hedensdaegse JRechtsgdeerthei/t, 3. 21. 6-7. 

" V. d. K. Th. 484. ' Voet, 2. 14. 9. 

* Vinnius ad Inst. 3. 14. 2, sec. 11. 



FORMATION OF CONTRACT 



199 



or a false cause, or a cause which offends against justice, 
good faith, or good morals.' ^ By this he means that there 
is no contract if the parties : (1) {nulla causa) did not 
mean to contract or meant to contract, but the contem- 
plated object and foundation of the contract has failed ; 
(2) [falsa causa) thought that a certain object or foundation 
of the contract existed when in fact it did not ; or (3) 
{turpis causa) contemplated by their agreement an object 
condenmed by law.^ The language of Van der Linden 
reappears in the Civil Code now in force in Holland.* 

It was said above that even in a developed legal system 
form may sometimes be required in particular cases. 
Thus English Law sometimes requires a deed, in other 
cases that a contract should be evidenced by writing. In 
the Roman-Dutch Law no such requirement exists. Van 
der Linden,* indeed, says that an ante-nuptial contract 
must be in writing, but Van der Keessel disagrees.® It is 
not necessary that contracts relating to land should be in 
writing.® However, by Cape Law an ante-nuptial contract 

1 V. d. L. 1. 14. 2 (ad fin.), and of. Code Civil, Art. 1131 : L'obUga- 
tion sans cause, ou sur une fausse cause, ou sur une cause illioite, 
ne peut avoir aucun effet. B. W., Art. 1371 : Eene overeenkomst 
zonder oorzaak, of uit eene valsohe of ongeoorloofde oorzaak aangegaan 
is krachteloos. The Ontwerp of 1820, Act. 2148, attempts a definition 
or explanation of ' oorzaak ', which merely amounts to saying that 
a contract in the legal sense must be an ' act in the law '. It runs as 
follows : Er bestaat geene inschuld zonder oorzaak, dat is zonder het 
aanwezen eener zoodanige verpligting of verbindtenis van de zijde der- 
geenen, tegen wien de rechthebbende zijne inschuld wil doen gelden, als 
aan welke door de wet het regt van inschuld, of de bevoegdheid tot 
regtsvordering, verbonden is. 

^ It is plain from the footnote to Van der Linden's text that this 
passage has reference to the Civil Law and the various oondictiones 
known as condiotio causa data causa non secuta ; oondiotio sine oiusa; 
condictio ob turpem vel injustam causam ; condictio indebiti. 

^ Note 1, supra. 

« V. d. L. 1. 3. 3 ; supra, p. 83, n. 5. = Th. 229. 

^ I.e. not by. the R.-D. common law, but writing may in this and 
other oases be required by statute, as in Ceylon by Ord. No. 7 of 1840, 
sec. 2 ; in the Transvaal by Prool. No. 8 of 1902, sec. 30 ; and in Natal 
by Law No. 12 of 1884, sec. 1. There is no such enactment in British 
Guiana. In Ceylon by Ord. No. 7 of 1840, sec. 21, no promise, contract, 
bargain, or agreement, unless it be in writing and signed by the party 
making the same, or by some person thereto lawfully authorized by 
him or her, shall be of force or avail in law for any of the follow- 
ing purposes : (1) for charging any person with the debt, default, or 



The 

modern 

law in 

some oases 

requires 

that 

contracts 

should 

be in 

writing. 



200 THE LAW OF OBLIGATIONS 

will not affect third parties unless registered in the office 
of the Registrar of Deeds, and transfers, mortgages, and 
long leases of land are, as has been seen in an earlier part 
of this work, subjected to the same condition. 

Section III 

The agreement must not have been procured by 
Fraud or Fear. 

c. Agree- All Contracts derive their validity from the mutual and 

must be ^^^® consent of the contracting parties. Free consent is 

free. absent when a contract has been procured by fraud or fear. 

Fraud is defined by Labeo as ' omnis calliditas, faUacia, 

Fraud. machtnatio, ad circumveniendum, fallendum, decipiendum 

alterum adhibita ' ^ — ' any craft, deceit, or contrivance 

employed with a -view to circumvent, deceive, or ensnare 

another person '. 

In the Roman Law dolus produced (inter alia) the follow- 
ing effects : viz. (1) It might be pleaded by way of excep- 
tion (exceptio doli). (2) It grounded an action (actio doli). 
(3) It entitled the person deceived to rescission of any 
contract or conveyance entered upon or made in conse- 
quence of the deceit (restitutio in integrum). ^ The scope 
of these two last remedies was somewhat limited. 

miscarriage of another ; (2) for pledging movable property, unless the 
same shall have been actually delivered to the person to whom it is 
alleged to have been pledged ; . . . (4) for establishing a partnership 
where the capital exceeds one hundred pounds, provided that this shall 
not be construed to prevent third parties from suing partners, or persons 
acting as such, and offering in evidence circumstances to prove a part- 
nership existing between such persons, or to exclude parole testimony 
concerning transactions by or the settlement of any account between 
partners ; and by the Sale of Goods Ordinance (No. 11 of 1896, sec. i.) 
a contract for the sale of any goods shall not be enforceable by action 
unless the buyer shall accept part of the goods so sold, and actually 
receive the same, or pay the price or a part thereof, or unless some note 
or memorandum in writing of the contract be made and signed by the 
party to be charged or his agent in that behalf. 

^ Dig. 4. 3. 1. 2. This definition, together with the English Law as 
interpreted in Derry v. Peek (1889) 14 App. Ca. 337, is discussed in 
Tait V. Wicht (1890) 7 S. C. 158. See also Roorda v. Coh^ [1903] T. H. 
279. 

^ Girard, Droit Romain (ed. 5), p. 421. 



FORMATION OF CONTRACT 201 

In Roman-Dutch Law the victim of fraud could either : Remedies 
(a) set up the fraud as a defence;^ or (6) sue for fraud in 
damages ; ^ or (c) take steps to have the contract set 5°?^^°" 
aside.^ This he did by applying to the Hooge Raad for Law. 
a writ directing a Court of first instance to inquire into 
the truth of his allegations and, if they were well founded, 
to grant relief. 

In the Roman-Dutch Colonies the procedure has been Ai-e 
simplified, but the remedies are substantially the same, "nduced 

With regard to the effect of fraud on Contract, the by fraud 
Roman Law distinguished between fraud which was of merely 
such a character that but for it the defrauded party ■voidable ? 
would not have contracted at all {dolus dans locum con- 
tractui), and fraud which was merely incidental to a con- 
tract (dolus incidens in contr actum), e. g. a fraudulent 
misrepresentation as to the value of an article sold. The 
operation of these two cases of fraud differed, again, 
according as the contract concerned was bonae fidei or 
stricti juris. This last-named distinction was of little or 
no importance in the Dutch Law.* Some writers, how- 
ever, amongst them Voet and Van der Linden, retain it in 
connexion with the much-debated question whether fraud 
which goes to the root of a contract renders such contract 
void, or merely voidable. Voet ® and Van der Linden ^ 
say that fraud of this character renders a bonae fidei 
contract absolutely void,' while in the case of a stricti 
juris contract it merely gives a claim to relief. Grotius 

1 Gr. 3. 48. 7 ; Van Leeuwen, 5. 17. 13. 

2 Decker ad Van Leeuwen, 4. 2. 2 (Kotz^'s translation, vol. 11, 
p. 13). 

* Van Leeuwen, 4. 42. 2 and 4. Apparently a claim for restitution must 
always be made by way of mandament van relief or request civil. Gr. 
3. 48. 5; Cens. For. 1. 4. 42. 5; Papegay, cap. xliv, vol. i, p. 614; 
Kersteman, Woordenboek, sub voce Relief ; Van der Linden, Verhande- 
ling over de Jvdicieele Practijcq, 4. 1. 4 (vol. ii, p. 172). 

* Decker ad Van Leeuwen, 4. 2. 1 (Kotze's translation, vol. ii, p. 11) ; 
Van der Linden's Pothier, sec. 9, in notis. 

5 Voet, 4. 3. 3 and 6. 

« Van der Linden, Supplement, ad Pandect. 4. 3. 3. Van der Linden 
thinks that the same consequence follows dolus incidens. Ibid. sec. 4. 

' So also V. d. K. Th. 666. Girard says (p. 463, note 4) : ' Mais 
cette opinion est aujourd'hui abandonn^e.' 



202 



THE LAW OF OBLIGATIONS 



Impor- 
tance of 
the dia- 
tinotion. 



Inno- 
cent mis- 
represen- 
tation. 



states, in absolute terms, that a person is not bound by 
anything he does when misled by fraud.^ The distinction 
is perhaps not so sharp as it looks, for on the one hand the 
victim of fraud may always at his option affirm the 
contract, which he could scarcely do if it were really 
void ; and on the other hand, it was matter of prudence 
and the common practice to apply for relief, even in the 
case of contracts which ex hypothesi were whoUy void.^ 
Mr. Justice Kotze in his edition of Van Leeuwen says : 
' It must be borne in mind that fraud does not necessarily 
render a contract void, but voidable at the election of the 
party sought to be defrauded.' ^ Pothier is to the same 
effect.* 

As between defrauded and defrauder the distinction 
between void and voidable is perhaps of no great impor- 
tance, but it affects the rights of innocent third persons 
to whom property obtained by fraud has passed. If the 
transaction is whoUy void the third party has no title, 
and the defrauded person can recover it from him by 
vindication.* If the transaction is merely voidable the 
innocent possessor is in the better position.* It would 
seem that the South African Courts have adopted this view. 
It must be noted that dolus always impHes an intention 
to deceive. In the Dutch Law innocent misrepresenta- 
tion inducing a contract gave no right of action nor claim 
to relief. It was, however, available as a defence, for it 



^ Gr. 3. 1. 19. But Van der Linden says (1. 14. 2 ; Juta's translation, 
p. 103) : ' Only that which is a manifest ■violation of bona fides is con- 
sidered by the Court to be an actual fraud, sufficient to rescind the 
contract, e. g. all wrongful practices and artiiSces used by one party in 
order to induce the other to enter into the contract, without which the 
latter would not have made the contract.' In another passage (3. 17. 3) 
Grotius says that ' if the whole sale was induced by the seller's fraud 
and otherwise would not have taken place, the sale is annulled at the 
instance of the purchaser '. This amounts to saying that the contract 
is not void, but voidable. 

2 Voet, 4. 1. 13 ; Van der Linden's Pothier, sec. 22, note ; V. d. K. 
Th. 877. 

3 Kotze's Van Leeuwen, vol. ii, p. 13. * Sec. 29. 

^ Voet, 4. 3. 3. This is expressly stated also by Groenewegen ad Gt. 
3. 48. 7, citing Neostad. Supr. Cur. decis. no. 5. 
» Voet, 4. 3. 10. 



FORMATION OF CONTRACT 203 

is inequitable to sue upon such a contract.^ The modern 
law, influenced by English practice, allows a plaintiff to 
sue for rescission of a contract so induced, but no more 
than the Dutch Law allows an action for damages. The 
extraordinary remedy in case of laesio enarmis was the one 
exception admitted by the Dutch Law.^ This has been 
superseded in some of the colonies by statute.* 

Fear is another ground of invalidity in contract. Fear. 
' Quod metus causa gestum erit ratum non habebo,' said 
the Roman Praetor in his edict.* Ulpian defines fear as 
'a disturbance of mind caused by instant or future peril '.^ 
Grotius describes it ® more largely as ' a great terror as 
of death, dishonour, great pain, unlawful imprisonment 
of oneself or of one's belongings '.' It is an old con- 
troversy whether a contract procured by fear is void 
or merely voidable. The latter view i^-now generally 
adopted, following the well-known dictum of Paulus, 
' coactus volui ',* to which the glossator adds the 

^ Van der Linden, Supplement, ad. Pandect. 4. 3. 1 (ad fin.). For 
South African Law see Viljoen v. Hellier [1904] T. S. 312. 

^ The rule that a vendor of land for less than half its real value 
might get back his land on returning the price, unless the buyer pre- 
ferred to pay the full value, is attributed in Justinian's Code (4. 44. 2 
and 8) to constitutions of Diocletian and Maximilian (a. d. 286 and 
293), but perhaps was of later origin. Girard, p. 542. In the Dutch 
and perhaps in the Roman Law, a similar indulgence was allowed to a 
purchaser who had paid more than double value, and in Dutch Law 
the principle was extended to other contracts besides sale. Gr. 3. 17. 5 ; 
3. 62. 2. Van Leeuwen, 4. 20. 5. Did the rule extend to movables as 
well as to land ? Girard, ubi sup. 

^ It has been abolished in Cape Colony by the General Law Amend- 
ment Act No. 8 of 1879, sec. 8, and in the Free State by Procl. No. 5 
of 1902, sec. 6. It still obtains in the other R.-D. Colonies (except 
Southern Rhodesia, which follows Cape Law) : viz. in the Transvaal, 
McQee v. Mignon [1903] T. S. 89 ; in Natal, Bergtheil v. Crowly 
(1896) 17 N. L. R. 199 ; in Ceylon, Qooneratne v. Don Philip (1899) 
5 N. L. R. 268. In British Guiana the defence of laesio enormis was 
raised with success in Halt/ v. Vieira (1913), Brit. Qui. Off. Oaz., 
vol. xxxvii, p. 611, in which case it was further held that the doctrine is 
not confined to land [G.]. * Dig. 4. 2. 1. 

' Metus instantis vel futuri periculi causa mentis trepidatio. Ibid. 

« Gr. 3. 48. 6. 

' I. e. wife and children. Voet, 4. 2. 11. 

8 Dig. 4. 2. 21. 6 ; Gr. ubi sup. ; Voet, 4. 2. 1 ; Pothier, Traite des 
obligations, sec. 22, with V. d. L.'s note in the Dutch translation ; 
Van der Linden, Supplement, ad Pandect. 4- 2. 2. 



204 THE LAW OF OBLIGATIONS 

explanation ' voluntas coacta est voluntas ' . Accordingly a 
contract induced by fear remains good until repudiated or 
rescinded/ and may be ratified expressly or tacitly when 
the fear is removed.^ It is not every kind of fear that 
affects the formation of a contract, but only a just or 
reasonable fear — ' metus non vani hominis ' ^ — regard 
being had, however, to the age, sex, and condition of the 
person intimidated, * and a fear of unlawful not of 
lawful violence.^ Mere threats are not enough, unless 
they are of a serious character and are likely to take 
effect.® The action ' quod metus causa ' lies against the 
intimidator, and against any other person into whose 
hands the proceeds of the intimidation ' have come, or 
who has otherwise benefited by it,® at the expense of the 
plaintiff.* But a person seeking to avoid a contract or 
conveyance on the ground of metus can only do so on 
condition of restoring the defendant to his former posi- 
tion.^" This applies equally to the intimidator and to 
third parties, so that the position of a third party, whether 
he be a bona fide or a mala fide possessor, is better in a 
case of metus than in a case of error. An action to set 
aside a transaction on the ground of fear is prescribed in 
thirty years. ^^ 
Undue The topic of undue influence, as distinct from metus, 

influence. -^ ^^^ developed in the Roman-Dutch writers. However, 
the books contain hints which might have been worked 
out by judicial decisions without the aid of English 
precedents .^^ 

1 Voet, 4. 2. 2. " Voet, 4. 2. 16. 

3 Dig. 4. 2. 6 ; Voet, 4. 2. 11 ; V. d. L. 1. 14. 2. 
* Voet, ubi sup. 

5 Voet, 4. 2. 10. 

6 Voet, 4. 2. 13. 
' Voet, 4. 2. 4. 

8 Voet, 4. 2. 5-6. 

" In the Roman Law the action lay for four-fold damages in case 
of failure to restore (Dig. 4. 2. 14. 1) ; but in R.-D. L. the action was 
always in simplum. Voet, 4. 2. 18. 
i» Voet, 4. 1. 22 ; 4. 2. 9. 

" Gr. 3. 48. 13 ; Gem. For. 1. 4. 41. 8 ; Voet, 4. 2. 18. 
12 Voet, 2. 14. 19; 4.2.11. 



FORMATION OF CONTRACT 205 

Section IV 
TJie agreement must not he directed to an illegal object. 

The next requisite of a valid contract is that it should p. Legal- 
be directed to a proper object. An object is improper if object, 
it is condemned by statute or by common law.-"^ In all 
mature legal systems the principal heads of illegality will 
be much the same. But since social progress brings with 
it new conditions and fresh abuses, the illegalities of one 
age will not be identical with the illegalities of another. 
Accordingly, the categories of unlawfulness ia contract 
are not in the modem law quite the same as they were in 
the Roman Law or in the Dutch Law of the eighteenth 
century. 

Unlawful contracts are regarded by Roman Law as Effect of 
civilly impossible.^ For this reason Decker speaks in the ' ^s^"*^- 
same breath of physical and of moral possibility (i. e. 
legality) as together making one of the essentials of con- 
tract.* It is, however, more in accordance with modem 
usage to keep these topics distinct. Unlawful contracts are 
nuU and void.* No action can be grounded upon them. 
On the other hand, money paid in pursuance of an unlaw- 
ful contract caimot be recovered back, for, as was said by 
an English Judge : ' Whoever is a party to an unlawful 
contract, if he hath once paid the money stipulated to be 
paid in pursuance thereof, he shall not have the help of 
a Court, to fetch it back again. You shall not have 
a right of action, when you come into a Court of justice 
in this unclean manner to recover it back.' The same 
doctrine is expressed in the Civil Law maxim, ' in pari 
delicto potior est conditio defendentis '.* This rule 

1 Gr. 3. 1. 42-43 ; Voet, 2. 14. 16. 

^ Voet, uhi sup. ' Supra, p. 197. 

* Gr. 3. 1, sees. 19, 42, and 43; V. d. L. 1. 14. 6. Under unlawful 
contracts are included contracts subject to a suspensive condition 
which is unlawful. Gr. 3. 14. 29. 

^ Aliter, In delicto pari potior est possessor. Dig. 12. 7. 5 pr. ; 
Gr. 3. 1. 43; Woolman v. Glensnich (1905) 26 N. L. R. 379 (money 
lent for an illegal object irrecoverable). 



206 THE LAW OF OBLIGATIONS 

excludes cases in which the promisee alone is guilty. For 
if an innocent party has paid money or transferred pro- 
perty for a purpose in fact unlawful, he may get it back 
(together with fruits and accessions), or the value, by the 
Condictio process which in Roman Law was known as the condictio 
ob turpem ^^ turpem causam ; -^ and the principle has been extended 
to the case of a plaintifE guilty, but not equally guilty 
with the defendant, as for instance if he entered upon the 
transaction under the influence of compulsion or menace.^ 
What The principal categories of illegality in contract are the 

contracts f oUowiug : 
illegal : 

A. Contracts made in breach of statute. 

Contracts If a Contract is expressly prohibited by law, or is directed 
ta:eaoh"of *° ^^ object expressly condenmed by law, there can be no 
statute, question that the whole transaction is void. But whether 
a contract to which a statutory penalty attaches is 
thereby rendered : {a) illegal, or (6) void, or (c) merely 
expensive to the parties, is in each case matter of con- 
struction. Likewise, apart from any question of penalty, 
a contract may be rendered void by law without beiag 
therefore necessarily illegal. 

B. Contracts prohibited by the common law. 

Contracts Such are : 1. Agreements to commit a crime or civU 
by'the'*" Wrong ; ^ promises inducing the commission of a crime 
common or civil wrong ; promises made as an inducement to the 

promisees to abstain from such wrongful acts. 

2. Agreements which tend to prevent the course of 

justice, e. g. to stifle a prosecution,* to condone the com- 

1 Voet, 12. 6. 1 ; Sandeman v. Solomon (1907) 28 N. L. R. 140. 

2 See Wells v. Du Preez (1906) 23 S. C. 284. It seems further that 
money can sometimes be recovered back where the illegality is not so 
much the object as the consequence of the contract, at all events when 
nothing further has been done in pursuance of the contract. Of. Dig. 
12. 7. 5 pr. : Avunculo nuptura peoimiam in dotem dedit neque nupsit; 
an eandem repetere possit quaesitum est. Papinian answered yes. 

3 Inst. 3. 19. 24 ; Gr. 3. 1. 42 ; Voet, 2. 14. 16. 

" V. d. K. Th. 520 ; Hotz v. Standard Bank (1907) 3 Buch. A. C. 53 ; 
Bezuidenhout v. Strydom (1884) 4 E. D. C. 224. 



FORMATION OF CONTRACT 207 

mission of a future crime/ to pay a witness a fee for atten- 
dance larger than the amount fixed by law.^ To this class 
may be referred such agreements as in Enghsh Law are 
known by the names of maintenance and champerty — ^viz., 
agreements to promote and maintain legal proceedings 
in which the promisor has no direct concern, and in 
particular to do so with a view to sharing with a plaintiff 
the proceeds of a suit.* Voet mentions in this connexion 
an agreement de, quota litis between lawyer and client, an 
agreement that a lawyer is not to be paid tinless the suit 
is successful, an improper agreement for the purchase of 
another's right of action.* Cession of actions is, how- 
ever, free from objection, unless of a speculative character, 
or for other reasons contrary to legal policy. 

3. Agreements for the sale or procurement of public ^ 
offices or otherwise tending to injure the public service. 

4. Agreements tending to injure the State in its foreign 
relations. 

5. Agreements directed to a fraud upon the public.^ 

6. Agreements tending to sexual immorality.' 

7. Agreements in restraint of marriage ; * eg. an 
arrangement between two persons that whichever of the 
two marries first shall pay a sum of money to the other. 
But agreements to procure marriage for reward, contrary 
to English law, are not unlawful by Roman-Dutch law.* 

8. Agreements in undue restraint of trade.^° 

9. Agreements in fraud of creditors." 

10. Agreements relating to a future right of succession 

I Gr. 3. 1. 42 ; Voet, uhi sup. ^ Knox v. Koch (1883) 2 S. C. 382. 
^ Gr. 3. 1. 41. For Brit. Gui. see Mitchell v. Legatt (1904) Off. Oaz. 

vol. xxi, p. 5. 

* Gr. 3. 1. 41 ; and Schorer ad loo. ; Voet, 2. 14. 18. 

5 Van Leeuwen, 4. 14. 6 ; V. d. K. Dictat. ad Gr. 3. 1. 42. 

« St. Marc v. Harvey (1893) 10 S. C. 267. 

' Voet, 12. 5. 6 ; Aburrow v. Wallis (1893) 10 S. 0. 214. 

8 Voet, 2. 14. 21. 

9 Bynkershoek, Quaest. Jur. Priv., lib. ii, cap. vi ; V. d. K. Th. 482. 
In King v. Gray (1907) 23 S. C. 554, however, the Court adopted the 
principle of the English case of Hermann v. Charlesworth [1905] 
2KB. 123 ; and made no reference to the Roman-Dutch authorities. 

i» Edgcombe v. Hodgson (1902) 19 S. 0. 224. 

II Gr. 2. 5. 3 ; and V. d. K. Dictat. ad loo. ; Gr. 3. 1. 27. 



208 THE LAW OF OBLIGATIONS 

or limiting freedom of testation.^ This is a head of 
illegality derived from the Roman Law. As expounded 
by Voet in his Commentary, the law reprobates any agree- 
ment relating to the succession of an ascertained person 
stUl alive, even though made with such person's consent. 
Such agreements are contrary to public policy, ' tanquam 
continentia votum captandae mortis et eventus tristissimi 
ac periculosi plena '.^ Nor can a person contract to 
make another his heir.^ Nor can two persons mutually 
stipulate that they shall succeed to one another.* The 
general rule extends to legacies, so that a promise to leave 
money by will cannot be enforced against a deceased 
person's estate, nor found an action for damages.® An 
agreement, however, relating to the estate of an uncertain 
person still alive, or of a deceased person, is free from 
objection. Agreements in ante-nuptial contracts relating 
to the succession of the spouses inter se, or of the spouses 
to a third party, or of a third party to the spouses, and 
agreements for the division of an inheritance amongst 
co-heirs {de familia erciscunda), are permitted. 

Agreements which burden the obligor without benefit- 
ing the obligee,® and promises which are merely sUly and 
foolish,'' though not illegal in the sense of being contrary 
to law, are devoid of legal effect.* 
Gaming Gaming and wagering contracts occupy a peculiar 
position, for, though not positively illegal, it is the policy 



and 

wagering 
contracts. 



1 Gr. 3. 1. 41 ; V. d. K. Th. 479, and Dictat. ad loo. ; Voet, 2. 14. 
16 ; Cens. For. 1. 4. 3. 15 ; unless such agreement is contained in 
an antenuptial contract. Gr. loc. cit. ; V. d. K. Dictat. ad loc, and ad 
Gr. 2. 12. 8 ; V. d. K. Th. 235 fi., and Th. 479. 

2 Cod. 2. 3. 30. 2 ; Voet, vM sup. 
^ Holl. Cons., vol. iv, no. 30. 

* Holl. CoTis., vol. V, no. 225. If, however, two persons contracted 
as to the succession to a third, and such third person assented, and did 
not subsequently revoke his assent, the contract was allowed to be good. 
Cod. vbi sup., sec. 3 ; Cens. For. vhi sup. ; Voet, vhi sup. 

^ Voet, loc. cit. {ad fin.), ' et si quis alteri pollicitatione ', &c. 

" Voet, 2. 14. 20. ' Voet, 2. 14. 16. 

^ Grotius (3. 1. 40) adds : Contracts for the sale or use, &c., of res 
extra commercium ; but these, like the last, are not so much illegal 
as invalid. The sale of a res litigiosa is not forbidden in R.-D. L. 
V. d. K. Th. 630. 



FORMATION OF CONTRACT 209 

of the law to discourage them.'^ Whether by the Roman - 
Dutch common law wagers were or were not invalid is 
a question which, in view of the great variety of opinion 
expressed by different writers, must be considered to be 
quite tmsettled.^ In the modem law the tendency of 
judicial opinion has been decidedly against their enforce- 
ment. Thus, in a case decided in the Transvaal Supreme 
Court in 1905, Innes C.J. said: 'I think, having regard 
to the general current of legal decision in South Africa, 
the Court should not enforce contracts in the nature of 
wagers '.^ On the other hand, money paid tinder a wager 
carmot be recovered back by the loser. But one who has 
deposited money or any other thing to abide the result 
of a wager may reclaim it from the stakeholder at any 
time before it has been paid over to the winner (even after 
the determination of the event ? ) and, if the stakeholder 
nevertheless hands it over to the winner, may maintain 
an action for its value.* A person who has made bets for 
me as my agent must hand over the winnings.* Whether 
money lent to make * or to pay bets can be recovered is not 
yet settled. A person to whom a negotiable instrument 
has been given in respect of a gaming or wagering trans- 
action cannot recover upon it, but a bona fide holder for 
value would probably not be under the same disability. 

At the Cape, Act No. 36 of 1902, reproducing the pro- statute 
visions of the Imperial Gaming Act of 1845 (8 and 9 Vic. ^^^^^° 
c. 109), by sec. 11 enacts : 'All contracts [or] agreements, Africa, 
whether verbal or in writing, by way of gaming or wager- 
ing, shall be null and void, and no suit shall be brought or 

^ The reader will do well to consult a careful article on ' The 
Roman-Dutch Law in relation to Gambling and Wagering'. 8.A.L.J., 
vol. xxiii, p. 21. 

2 See Gr. 3. 3. 49 ; Van Leeuwen, 4. 14. 5 ; V. d. K. Th. 514. 

3 Dodd V. Hadley [1905] T. S. at p. 442. 

* Sloman v. Berkovitz (1891) 12 N. L. R. 216. In this case the 
wager had not matured ; but does this matter ? 

* Dodd V. Hadley, vhi sup. 

° Van Leeuwen (4. 14. 5) says that money lent to gamble or bet 
with is irrecoverable. In Sandeman v. Solomon (1907) 28 N. L. R. 140, 
money lent for the purpose of discharging a cheque given in payment 
of a gambling debt was held to be irrecoverable. 
1713 P 



210 



THE LAW OF OBLIGATIONS 



maintained in any court of law for recovering any sum of 
money or valuable thing alleged to be won upon any 
wager, or which has been deposited in the hands of any 
person to abide the event on which any wager has been 
made : Provided always that nothing in this section shall 
be deemed to apply to any subscription or contribution 
or agreement to subscribe or contribute for or towards any 
plate, prize or sum of money to be awarded to the winner 
of any lawful game, sport, pastime or exercise.' 



E. Capa- 
city of 
parties. 



Section V 

The parties must he competent to contract. 

The law relating to capacity of parties has been already 
considered imder the head of the Law of Persons. 



CHAPTER II 



OPERATION or CONTRACT 



I N this chapter we shall consider : 

I. The persons affected by a contract. 
II. The duty of performance. 
III. The consequences of non-performance. 



Section I 

The persons ajfected by a contract. 

A contract primarily affects the parties to it and none 

others. In other words, no one can be bound or benefited 

by a contract to which he is not a party. Such was the 

Roman Law expressed in the maxims ' Nemo promittere 

potest pro altero ' ; 'Alteri stipulari nemo potest '.^ 

Nemo promittere potest pro altero. This means that a 

potSt^pro proi^ise made by A cannot impose a burden on B, for no 

altero. one can be bound by another man's contract.^ 

1 V. d. L. 1. 14. 3. 

'■' Certissimum enim est ex alterius contractu neminem obligari. 
Cod. 4. 12. 3 ; Gr. 3. 1. 28 ; Van Leeuwen, 4. 2. 4. 



The 
persons 
affected 
by a 
contract, 



Nemo 



OPERATION OF CONTRACT 211 

In the Roman Law the rule was carried so far that 
a promise by A that B would do something was destitute 
of legal effect,^ not binding A because it was not intended 
that it should, not binding B because it was not his 
promise. However, such a promise would now generally 
be construed as equivalent to a promise by A that he 
would procure B to do the thing in question.^ It must 
be noted further, that the rule nowadays has no applica- 
tion to the relation of principal and agent. A servant * or 
agent, acting within his authority, contracts for his 
principal and binds his principal by his contract. More- 
over, there are certain legal relations other than that of 
principal and agent which give to one person in greater 
or less measure the power of binding another by contract. 
Thus a husband binds his wife,* a tutor his ward,^ a father 
his child,* and a master of a ship the ship-owner.^ 

Alteri stipulari nemo potest.^ This rule is the converse Alteri 
of the one stated above. It means that just as a person ^g^"^^" 
cannot be burdened by a contract to which he is not a potest. 
party, so neither can he be benefited by it.' 

Like the other, this maxim is qualified in the modern 
law by the rule which permits an agent to acquire a 
contractual right on behalf of his principal ^° and is also 
modified in favour of the wife, the ward, the parent, and 
the child, who may benefit by the contracts respectively 
of husband, guardian, child,-^^ or parent, made on their 
behalf. 

But does the rule itself hold good in the Roman-Dutch 

1 Inst. 3. 19. 3 ; Vinnius, ad loc. 

2 Gr. 3. 3. 3 ; Van Leeuwen, 4. 2. 5 ; Groen. de leg. abr. ad Inst. 
3. 19 (20). 3, sec. 3 ; Vinnius, ibid. ; Voet, 45. 1. 5. 

^ Van Leeuwen, 4. 2. 6-7. 

* Or rather her goods. Gr. 1. 5. 22. = Gr. 3. 1. 30. 

' Gr. 3. 1. 28. A father who has sons in his power may bind them 
to perform anything which a person sui juris might undertake by con- 
tract ; e. g. he may let out their services on hire. V. d. K. Dirtat. 
ad loc. 

' Gr. 3. 1. 32. 8 Inst. 3. 19. 19 ; Dig. 45. 1. 38. 17. 

9 Gr. 3. 1. 36 ; 3. 3. 38. " V. d. L. 1. 14. 3 [ad fin.). 

" V. d. K. Th. 509. 

P2 



212 THE LAW OF OBLIGATIONS 

Is this Law ? The contrary is asserted inter alios by Voet,^ 
law at the Qroenewegen,^ Heineccius,^ and with accustomed vehem- 
day ? ence by Decker,* and this view was adopted by Sir Henry 
de Vilhers, in the case of Tradesmen's Benefit Society 
V. Du Preez, subject, however, to the quahfication that 
there must be some consideration moving from the origioal 
promisee.^ But if we turn to Van der Keessel we find 
the law stated with much more caution. According to 
this writer, the third person acquires no right in the case 
supposed, unless either : (1) he accepts the promise, or 
(2) the original promisee is a notary.* Having regard to 
this statement of the law and to the terms in which 
Huber,' Heineccius,* and Decker^ express themselves, 
we may question whether these jurists intended more 
than to assert the principle that if B, assuming without 
authority to act for C, contracts with A on C's behalf, 
C may, on coming to know of it, make the benefit of the 
contract his own by ratification without cession of action 
by B.^° This is a proposition which to-day is beyond 
dispute, but it is no foundation for the further proposition 
that, if A and B contract as principals that one or both 
of them wiU pay a sum of money to C, C may sue one or 
both of them if the money is not paid. It would seem, 
therefore, that, leaving out of account the exceptional 
treatment of the notary, which can scarcely hold good in 
the modem law, apart from : (1) ratification, and (2) an 

1 Voet, 45. 1. 3. 

- Groen. de leg. abr. ad Inst. 3. 20 (19). 19; see also Vinnius ad Inst. 
3. 20 (19). 4, sec. 3, and Tract, de Pactis, cap. xv. 

' Heinecoius, Elem. Jwr. Oerm., sec. 347. 

' Decker ad Van Leeuwen, 4. 2. 5 (Kotze's translation, vol. ii, p. IV). 

5 Tradesmen's Benefit Society v. Du Preez (1887) 6 S. C. 269. 

« V. d. K. Th. 510 ; Vinnius, ubi sup. 

' Huber, Hedensdaegse Bechtsgdeertheyt, 3. 21. 40. 

8 Ubi sup. ° Ubi sup. 

'" This appears to be all that Grotius intends when he says (3. 3. 38) 
that a third person may accept the promise and thus acquire a right, 
unless the promisor revokes the promise before acceptance by such 
third person. The words in the text ' voor de toezegging ' should 
be corrected to ' voor de aanneming '. V. d. K. Dictat. ad loc. Van 
der Linden (1. 14. 3, and note) agrees with Grotius, rejecting the view 
of Groenewegen and Voet. 



OPERATION OF CONTRACT 213 

express declaration of trust, the rule ' Alteri stipulari 
nemo potest ' still obtains. 

Cession and Transmission of Actions. It has been said Cession 
above that a contract primarily affects the parties to it ^^^g. 
and none others. But persons not originally parties may mission of 
become so, either by agreement {cession of actions) or by 
operation of law {transmission of actions). 

By agreement, contractual rights and duties may be 
transferred so as to substitute another person in place 
of the original debtor. But there is a great difference 
between assignment of duties and assignment of rights. 

Contractual duties cannot be transferred except in Assign- 
consequence of a substituted contract {novation), which ^nteao- 
requires the consent of the original parties and also of the t^al 
substituted debtor. The effect is to discharge the original 
debtor from further liability, the substituted debtor 
taking his place. 

Contractual rights are now, with some exceptions. Assign- 
freely transferable by cession of actions. Such is the ™^°* ° 
result of a long process of legal development, of which the tractual 
beginniags must be sought far back in the history of ' 

Roman Law. The Civil Law never, it seems, quite reached in the 
this point. For though in the latest Roman Law an as- Law^° 
signee was 'allowed : (1) to secure to himself the benefit 
of the obligation, even before bringing an action, by giving 
the debtor notice of the assignment (Cod. 8. 41. 3); 
and (2) to sue not in. the assignor's name, but in his own 
by actio utilis ; ' yet, ' it is disputed whether the effect of 
the change was to make the assignee sole creditor, or 
whether in relation to the debtor he did not still legally 
continue a mere agent, enforcing by action ia his own 
name the right of another ; in other words, whether 
a genuine assignment by which the assignee simply and 
actually stepped into the shoes of the assignor, who 
simultaneously dropped altogether out of the matter, was 
recognized at any time in Roman Law.' ^ 

^ Moyle, Institutes of JvMinian (5th ed.), p. 483. 



214 THE LAW OF OBLIGATIONS 

in the This doubt does not exist in the modern law ; for now : 

Duteh" (1) Contractual rights and rights arising from breach of 
Law. contract (exceptions apart) are freely assignable without 
the consent and against the will of the debtor.-"^ 

2. The cession can generally be completed by bare 
agreement without formality ; ^ but the law requires that 
the intention to effect the cession should be clear and 
beyond doubt, and that no further action on the part of 
the assignor (cedent) should be necessary to make the 
cession complete.^ 

3. The effect of cession is to substitute the assignee 
(cessionary) in place of the cedent as creditor in respect of 
the obligation ceded,* and to vest in the cessionary aU the 
cedent's rights against the debtor.* 

^ Sande, De actionum cessions, cap. ix, sec. 5 ; Paterson's Exors. v. 
Webster, Steele di Co. (1881) 1 S. C. at p. 355, per de Villiers C.J. : 
' No rule is more clearly established in our law than that rights of 
action may be ceded to third parties without the consent of the party 
liable; Cvllinan v. Pistorius [1903] 0. R. C. 33. 

^ Sande, cap. ii, sec. 2. 

" Wright da Co. v. Colonial Government (1891) 8 S. C. at p. 269 ; 
McGregor's Trustees v. SiWerbauer (1891) 9 S. C. 36 ; Van de Merwe v. 
Franch (1886) 2 S. A. R. 26. 

" Sande, cap. viii, sees. 7, 18, and 19 ; Fich v. Bierrmn (19,9,2) 2 S. C. 
at p. 34. By the constitution Per diversas (Cod. 4. 35. 22), commonly 
known as the lex Anastasiana, enacted by the Emperor Anastasius 
(a. d. 506) and confirmed by Justinian (Cod. 4. 35. 23), a cessionary 
of a debt (not merely of a res litigiosa ; Girard, p. 737, n. 5) could 
not recover from the debtor a sum in excess of that for which he had 
acquired the debt from the cedent. Gr. 3. 16. 14 ; Voet, 18. 4. 18. 
There was great difference of opinion as to whether this rule had 
been adopted in Holland. See Groen. de leg. abr. ad Cod. 4. 35. 22. 
But the better opinion seems to have been that it was accepted in 
the sense that when a debtor was sued upon a ceded right of action 
he could, usually within a year after he became aware of the cession 
(Groen. ad Gr. libi sup. ; Voet, 18. 4. 19) require the cessionary to 
declare on oath what sum he had paid to the cedent, and discharge 
himself by pajdng the same amount. Voet, 18. 4. 18. The lex Ana- 
stasiana has been declared to be obsolete in South Africa. Seavilk v. 
Colley (1891) 9 S. C. 39 (Cape) ; Machattie v. Filmer {189i) 1 0. R. 305 
(Transvaal). It seems doubtful whether and how far it obtains in 
Ceylon. Pereira, p. 654. With regard to British Guiana the Report 
of the Common Law Commission says (p. 7) 'as to the local non-vaUdity 
of the lex Anastasiana there can be no doubt whatever '. 

' Sande, cap. ix, sec. 1. The intention, however, may be not 
to transfer the debt, but merely to indicate a source from which the 
creditor of the so-called assignor may receive payment. The Civilians 
call this ' assignatio ' as contrasted with ' delegatio ', which corresponds 



OPERATION OF CONTRACT 215 

4. Therefore, the debtor after cession is no longer liable 
to the cedent and cannot be required by him to perform the 
contract, nor be sued by him in case of non-performance.^ 
After notice of the cession, payment must be made to the 
cessionary and not to the cedent.^ 

5. If, however, the debtor, in ignorance of the cession, 
satisfies the claim of the cedent, his liability is at an end.* 
For this reason, at all events, it is matter of prudence for 
the cessionary at the earliest possible date to acquaint the 
debtor with the fact of the cession. 

6. Whether, in the event of the creditor ceding the 
same debt twice over to successive cessionaries, a second 
cessionary who has anticipated a first cessionary in giving 
notice to the debtor wUl be preferred to the first cessionary 
seems to be unsettled. Opinion inclines to a negative 
answer ; in other words, priorities are determined not by 
date of notice but by date of cession.* 

7. A cessionary cannot, generally, be in a better position 
than his cedent.^ Therefore all defences which might have 
been pleaded against the cedent at the date of cession 
may equally be pleaded against the cessionary.* 

8. Generally speaking, any right may be ceded which is 
transmitted by the death of the party entitled.' This 

to ' assignment ' in the modern sense of the word. Assignatio (aenwij- 
zinge) does not discharge the assignans nor render the assignatus 
liable. Gr. 3. 44. 5 ; V. d. K. TA. 837-8. 

^ Voet, 18. 4. 15 ; Ficlc v. Bierman, ubi sup. 

2 V. d. L. 1. 18. 1. 

* Voet, ribi sup. The same result follows, according to Voet, if 
the debtor satisfies the debt by bona fide payment to the cedent 
even with knowledge of the cession, but before notice from the cession- 
ary. The reason given by Voet is not entirely satisfactory ' cum utique 
ei solvat cui obligatus f uit, nee ipsi factum tertii obesse queat quamdiu 
denunciatio baud interoessit '. But he has said immediately above : 
' Plane nostris moribus circa cessas actiones magis placuit jus omne 
cedentis cessione extinctum esse '. 

* This is the opinion of Voet (18. 4. 17) dissenting from Sande, 
de act. cess., cap. xii, sec. 8. See Morkel v. Holm (1882) 2 S. 0. 57 ; 
Wright <fc Co. v. Colonial Government (1891) 8 S. C. 260. 

^ Anderson's Assignee v. Anderson's Exors. (1894) 11 S. C. at p. 440 ; 
Voet, 18. 4. 13. 

« Sande, cap. xiii. ■ At all events 'exceptiones in rem' may be so 
pleaded (sec. 2). 

' This excludes poenal actions ex delicto, e. g. the actio mjunafum. 



^6 THE LAW OF OBLIGATIONS 

excludes cases in which the debtor's duty of performance 
does not extend beyond the person of the creditor, and the 
debtor, therefore, may decline to recognize as entitled 
any other than the creditor in person (delectus personae)} 
Contrary to the Roman Law, the Roman-Dutch Law per- 
mits the transfer of a thing in litigation (res litigiosa) ; ^ 
but this does not imply the lawfulness of the cession of 
a right of action in a suit which has been already com- 
menced.* With these exceptions, it seems that aU con- 
tractual rights are freely cessionable, whether before or 
after breach, whether arising out of liquid or illiquid 
claims, whether obHgations to give or obligations to do. 
Formalities It has been said that, exceptions apart, a cession of 
in'^certain actious requires no formalities. The principal exceptions 
cases. are : (1) negotiable instruments (which are governed 
by rules of their own) ; (2) the transfer of shares in 
companies (which are commonly regulated by statute); 
(3) leases of rural tenements (the benefit of which camiot 
(semble) * be transferred to a third party without the leave 
of the lessor). 

In addition to these, Roman-Dutch Law required that 
a right arising out of the hypothec of immovable property 
should be transferred coram lege loci and subject to a 
transfer duty of 2| per cent. In the Cape Province, at 
all events, this rule no longer obtains. 

By operation of law, contractual rights are transmitted 
on insolvency and death.* Insolvency lies outside the 
scope of this work. With regard to the effect of death on 
contract, it may be said that all contractual rights and 
duties,® unless they be of a purely personal character. 

But there is no rule that actions ex delicto as a class are not assignable. 
Sande, cap. v, sees. 1, 2, and 11. 

1 Cullinan v. Pistorius [1903] O. R. C. at p. 38. 

2 Gr. 3. 14. 10 ; Groen. de leg. abr. ad Cod. 8, tit. 37 ; V. d. K. 
Th. 630. 

^ Sande, cap. v, sees. 15-22. 

* See below, p. 259. 

^ Also by marriage in community, for which see Book I, p. 81. 

* Gr. 3. 1. 44. Where there are several coheirs they are liable fro 
rata portione unless the claim is in its nature indivisible, in which case 
each is liable in solidum and has his remedy over against the others. 



OPERATION OF CONTRACT 217 

pass upon death to the representatives of a deceased 
person, who may sue or be sued in respect of them. In 
the modern law their liability in no case exceeds the assets 
of the estate. 

Section II 
The Duty of Performance. 

The duty of a party to a contract is faithfully to perform ' Staro^ 
his part with the care and diligence proper in the circum- ^^° '^' 
stances, and with due regard to any rules of law or lawful 
customs by which the character of the performance due 
from him is determraed. 

Generally speaking, the parties to a contract may in- Generally 

4. • •: f A. 1 J u • I- J the parties 

corporate m it any terms they please, and each is bound make 
to the other to do what he has undertaken. When the *^®"' °^™ 

terms. 

parties have expressly agreed, and the object contem- 
plated is not unlawful, the function of the Court is limited 
to interpreting the terms expressed. The rules of inter- 
pretation will form the subject of a later chapter. 

Generally, the Court will not make a contract for the But the 
parties. They must make up their minds what they i^^e^ 
mean, and they must express their meaning clearly and terms 
fully. But within limits law and usage operate to deter- 
mine the content of the contract and therefore the duties 
of the parties. 

If a rule of law is imperative the parties must conform absolutely, 
to it. They cannot contract themselves out of an express 
legal duty. But if, as often happens, the law merely lays 
down rules which are to govern a particular transaction 
in the absence of agreement to the contrary, it is open to 
the parties to modify or to depart from the rule in their 
absolute discretion, for 'conventio vincit legem '. The same or in the 
remark appHea to customs, whether local or relating to contrary 
some particular trade or business. They bind only so far ^^^^^^ 
as the parties have not seen fit to exclude their operation, parties. 

In this chapter we shall speak of various rules of law 
by which the duty of performance is determined where 



218 THE LAW OP OBLIGATIONS 

the parties have not departed from them by express 
agreement. 

AH contracts are commonly referred to one or other 
of two classes : viz. (a) contracts to give ; (6) contracts 
to do or to abstain from doing.-^ But it is evident that 
both of these duties may be incumbent upon the same 
person under the same contract. Thus, if I agree to make 
a cabinet according to certain specifications and to deHver 
it when made to a purchaser, I incur an obligation first 
to do and then to give. Indeed the distinction is of no 
great importance. The substantial thing is that what- 
ever the nature of the contract I must carry it out accord- 
ing to its terms. ^ 
Per- In the Latin texts of the Roman and of the Roman- 

Dutch Law the words ' solvere ' ' solutio ' are used in an 
extended sense to express the performance of any con- 
tractual duty. ' Solvere dicimus eum qui fecit quod 
facere promisit.' ' The use of the Dutch ' betahng ' * 
and of the Enghsh ' payment ' in the same wide sense can 
only be justified as a permitted abuse of language. We 
shall, so far as possible, limit the word 'payment ' to express 
a payment of money. The principles applicable to a 
money payment will, however, in many cases be found 
to be no less appHcable to any other performance of 
a contractual duty. 
By whom Performance may be made either by the debtor in 
formance person Or by his agent acting within the scope of his 
maybe authority. Indeed performance may be made by an 
independent third party in the name of the debtor, even 
without his knowledge and against his will, with the result 
that the debtor will be discharged from his liabiUty, unless 
the performance is of such a personal character that it 
cannot be effectually made except by the person originally 

^ Gr. 3. 39. 8 ; V. d. L. 1. 14. 6 ; Pothier, Traite des Obligations, 
sec. 53. " Voet, 46. 3. 8. 

3 Dig. 50. 16. 176 : Solutio est naturalis praestatio ejus quod 
debetur. Voet, 46. 3. 1. 

* V. d. L. 1. 18. 1 : Betaaling, dat is de dadelijke verviilling van 
bet geen men zig verpligt heeft te geven of te doen. 



OPERATION OF CONTRACT 219 

liable.^ This means, in effect, that performance of this 
character is permitted when the debtor's obligation con- 
sists in giving, but seldom when it consists in doing.^ 
A person under disability cannot discharge a legal debt Persons 
without his tutor's or curator's authority. If he does so, disability : 
the sum of money or other thing ahenated can be recovered 
by vindication, if still extant ; if it has been consumed, 
the debt is deemed to be discharged.^ This only applies, 
however, if the debt in question springs from a vahd civil 
obUgation. If a minor has contracted without his tutor's minors, 
authority, the thing delivered, or its value, can always be 
recovered back.* A married woman, being in law a minor married 
and unable to contract without her husband's authority, ^°""'°- 
is also unable to make a vahd payment. Consequently, 
money paid by her may be recovered by the husband 
stante matrimonio, or by herself after its dissolution. She 
may even recover money paid after the dissolution of the 
marriage in respect of a debt contracted during its con- 
tinuance, provided that she made the payment in ignor- 
ance of her rights and under the mistaken idea that she 
was effectively bound.^ 

Payment may be made to the creditor or his nominee To wfiom 
or to any person to whom payment is agreed to be made, f'^mance 
such person being regarded as the creditor's mandatary may be 

R _, . , 1 made. 

to receive payment. Payment may m any case be made 
to the creditor's agent, if to receive payment falls or fell 
within the scope of his authority, until the debtor has 
notice that the authority is revoked.' Payment made to 
a person who has no authority to receive payment on 
behalf of the creditor wiU nevertheless become good 
e,x post facto if the creditor ratifies the transaction or if 
the money paid is applied to his use.* A person employed 
to serve a summons or execute process is not an agent to 

1 Gr. 3. 39. 10 ; Voet, 46. 3. 1. ^ V. d. L. vhi sup. 

3 Gr. 3. 39. 11 ; Voet, 4. 4. 21 and 46. 3. 1. 
« Voet, loo. cit. ^ Voet, 12. 6. 19. 

» Gr. 3. 39. 13 ; Voet, 46. 3. 2 ; V. d. L. vhi sup. Such a person is 
said to be solutioni adjectus. 

' Voet, 46. 3. 3. * V. d. L. ub.i sup. 



220 THE LAW OF OBLIGATIONS 

receive payment, unless, perhaps, in case payment has 
been extorted from the debtor by threats/ Payment to 
servants is vahd, i£ it is within their authority to receive 
it.^ Payment of a debt due to a minor is validly made to 
his guardian, unless the debt is of large amount, in which 
case an order of the Coiu-t is desirable.* If the minor's 
father is aHve, payment to him as natural guardian may 
be made without having him first confirmed as guardian 
by the Court.* Payment to a married woman of a debt 
due to her or to her husband, made Asdthout his knowledge 
or against his will, is invaUd, unless it has been appUed to 
his use, or unless it is of small amount and may be sup- 
posed to have been applied by the wife to the purposes of 
the household.^ Payment may safely be made to a fidu- 
ciary pending the condition of a fidecommissum.® In the 
event of the creditor's death payment must be made to 
(his heirs '' and now to) his personal representatives.* 
When two persons both claim payment of the same debt, 
payment cannot safely be made to either. The debtor 
should deposit the money in Court, or if he pays to one of 
the rival claimants, take from him security against the 
claim of the other.® Payment to a creditor's creditor, 
apart from express authority, can only be justified, if at all, 
on the ground of negotiorum gestio. But a sublessee may 
pay an overlessor to avoid an execution upon his own 
goods. Payment made in good faith to an invadiQg 
enemy under pressure of vis major operates a discharge.^" 

^ Voet, vbi sup. ^ Voet, 46. 3. 4. 

3 Gr. 3. 39. 14 ; Voet, 4. 4. 22 {ad fin.) ; Holl. Cons., vol. i, no. 167, 
and vol. iii (1), no. 182. The Court, and in South Africa the Master, 
here, as elsewhere, takes the place of the Orphan Chamber. 

* See Van Booyen v. Werner (1892) 9 S. C. 425. 

= Groen. ad Gr. 3. 39. 14 ; Voet, 23. 2. 50 and 46. 3. 5; Neostadius, 
Supr. Our. Decis., no. 88. 

« Voet, 36. 1. 63 and 46. 3. 5. 

' V. d. L. iibi sup. 

^ Payment made to the supposed heir of a deceased person discharges 
the debt, Voet says, if made through reasonable error of fact and not 
of law. Voet, 46. 3. 5. 

' Voet (46. 3. 6) says ' consignandum '. Interpleader with payment 
into Court is the modern equivalent. 
i» Voet, 46. 3. 7. 



OPERATION OF CONTRACT 221 

When a debtor is bound by contract to deliver a thing obligatio 
of a certain genus, he must deliver a thing of the kind of generis. 
average quality.^ 

The creditor may, if he chooses, demand, but the debtor 
is not compellable to render, nor the creditor to accept, 
a part performance.^ Part performance, if accepted, Partper- 
extinguishes the debt pro tanto, and in the case of a money f°n»ianoe. 
debt prevents the further accrual of interest.^ 

When one of two performances is agreed to be rendered Altema- 

in the alternative, the choice of alternatives rests with the *''^^ ^^^' 
. formances. 

debtor, unless it has been expressly given to the creditor.* 

Substituted performance may be made with the consent Sub- 

of the creditor, but not otherwise.^ It has the same effect stituted 

as performance of the thing originally agreed to be done, formanoe. 

The effect of performance is to discharge from further Effect 

Uabihty the principal debtor, his co-debtors, if anv, ?* ^^' 

Ti, , . ,, .. - . formanoe. 

and all personal sureties and real securities for perfor- 
mance.* But if one of several co-debtors, or if a surety, 
pays the debt, he may demand from the creditor a cession 
of actions against co-debtors or sureties and thus keep 
the debt ahve.'' If the thing given in payment, or one of 
several things given in payment, is recovered from the 
creditor by a third party (eviction), the payment is, in the 
absence of a contrary intention, rendered void, and all 
former rights revive, unless the creditor prefers to sue the 
debtor for damages on the ground of eviction. The same 
result follows if the debtor has fraudulently misrepre- 
sented the value of the property given in settlement.® 

When a penalty is agreed to be paid in the event of Penalty 
non-performance, payment of the penalty releases the p°er.°°" 
debtor, unless the penalty falls short of the value of the formanoe. 

1 Voet, 46. 3. 9 {ad fin.) ; Groen. de leg. abr. ad Dig. 17. 1. 52. But 
Brunneman, ad loo., says : ' In obligatione generis liberatur quis prae- 
stando vUissimum. Groenwegen banc legem putat abolitam, sed nuUo 
fundamento.' 

2 Gr. 3. 39. 9 ; Voet, 46. 3. 11 ; V. d. L. uU sup. 

3 V. d. L. 1. 18. 1. * V. d. L. 1. 14. 9. 
5 Gr. 3. 42. 4-5 ; Voet, 46. 3. 10 ; V. d. K. Th. 834. 

8 Voet, 46. 3. 13 ; V. d. L. 1. 18. 1. 

" V. d. L. vi>i sup. * Voet, ubi sup. 



222 THE LAW OF OBLIGATIONS 

Proof of principal liability, i. e. of the measure of damages due to 

payment, ^j^^ creditor for non-performance.^ 

Payment may be proved by any lawful evidence and, 
in particular, by producing a receipt for the money, 
signed by the creditor or his agent. A creditor is bound 
to give a receipt, and a debtor is not otherwise compellable 
to pay.^ When yearly or half-yearly (or other periodic) 
payments are due from the debtor, three several receipts, 
for the last three payments, furnish presumptive evidence 
that earher payments have been duly made.* 

Appro- When several distinct debts are due from the same 

pa^entl debtor to the same creditor, questions often arise as to the 
appropriation of payments. The rules relating to this 
subject are stated by Voet * in considerable detail, and 
are the following : (1) The debtor may appropriate the 
payment to any debt he chooses ; faihng which — (2) The 
creditor appropriates ; ^ but he must do so as he would 
were he himself the debtor,* and therefore not to — (a) 
a disputed debt ; or (&) a debt not yet accrued due ; or 
(c) a debt due naturally and not civilly ; or (d) a debt for 
which the debtor is surety in preference to a debt due from 
him as principal.^ Appropriation must be made in re 
praesenti,^ i. e. at the moment of payment, so as to give 
the creditor an opportunity to refuse to accept, or the 
debtor to refuse to pay.^ 

If a payment is made to a person who has a claim 
in his own name, and also in the name of another, 
in the absence of expression to the contrary the payee 
is supposed to apply the payment to his own and 
not to his principal's claim, for charity begins at 
home — ' Dum ordinata charitas a se ipsa incipit.' 

1 Voet, ubi sup. ^ Voet, 46. 3. 15. ' Voet, 46. 3. 14. 

* Voet, 46. 3. 16 ; and see Gr. 3. 39. 15 ; andV. d.L. 1. ISA {ad fin.). 

' The iDest evidence of appropriation by the creditor is a statement 
to that effect in the receipt. Scott v. Sytner (1891) 9 S. C. 50, per de 
Villiers 0. J. ^ Dig. 46. 3. 1-2. ' Gr. vbi sup. 

^ Statim atque solutum est seu dum solvitur. Voet, ubi sup. — ^Ter 
selver stonde. Grot, ubi sup. 

» Dig. 46. 3. 2; Cod. 8. 42 (43). 1; Stiglingh v. French (1892) 9 S. C. 
386. " Voet, ubi sup. 



OPERATION OF CONTRACT 223 

(3) Failing appropriation by debtor or creditor, the law 
appropriates the payment as follows : viz. (a) to interest 
before principal ; (6) to the debt which the debtor at the 
time of payment is legally compellable to pay ; and if 
more than one debt is of this nature, then — (c) to the debt 
which lays the heaviest burden on the debtor, i. e. to that 
debt which it is most for his interest to discharge ; ^ and 
subject thereto — {d) to a debt due from him as principal 
in preference to a debt due from him as surety ; and 
subject thereto — (e) to the debt which is earlier in time ; ^ 
and in case of debts of equal date, finally — (/) to all such 
debts proportionately to their amount.* 

The subject of payment suggests the subject of interest, interest. 
This may either be agreed between the parties, or be 
allowed by the law as damages, if one or other party is in 
default {damage-interest)} As regards the legal rate of 
interest, Grotius says that ordinary citizens are allowed 
to stipulate for one-sixteenth, i.e. 6J per cent, per annum. 
Groenewegen in his note appUes this to secured debts 
only. In the case of unsecured debts, interest at the rate 
of seven or eight per cent, was permitted.® Merchants, by 
the Perpetual Edict of 1540 (Art. 8), enjoyed the special 
privilege of stipulating for interest up to twelve per cent.' 

An agreement for interest in excess of the legal rate is 
void only for the excess, which may be either recovered 
by action or imputed to the capital debt.* In South 
Africa it has been held that there is no general legal rate 

^ Watermeyer's Exors. v. Watermei/er's Exor. (1870) Buch. 69; 
Insolvent Estate of Wilhelm v. Shepstone (1878) N. L. R. 1. 

2 Gr. 3. 39. 15 ; Voet, ubi sup. ; Scott v. Sytner (1891) 9 S. C. 50. 

^ Voet, ubi sup. For the law as to appropriation of payments in 
Brit. Gni. see British Guiana Bank v. Herbert (1904) Off. Gaz. vol. sx, 
p. 6. * Voet, 22. 1. 1. 

= Gr. 3. 10. 10 {ad fin.) ; Loen. Decis. Gas. 21 ; Voet, 22. 1. 3 ; 
V. d. K. Th. 545. Van der Linden's statement (1. 15. 3) that anything 
in excess of this is usurious and punishable is scarcely borne out by 
his authorities. 

" But, as appears from Groenewegen, could not always be enforced. 

' 1 G. P. B. 317. Van der Keessel {Th. 547) says that this privilege 
was disused so early as 1590. 

8 Voet, 22. 1. 5. The same applies when a penalty for non-payment 
is agreed in excess of the legal rate. 



224 THE LAW OF OBLIGATIONS 

of interest, nor can any agreed rate of interest be pro- 
nounced usurious, except in view of the circumstances of 
the particular case.^ The rule of the Roman-Dutch Law 
Com- prohibiting compound interest ^ still retains its force, as 

uitere^t ^®^ ^^ ^^^ ^^^^ *^^* *^® amount of interest recovered in 
any one action cannot under any circumstances exceed 
the amount of the principal.* 
No In the absence of agreement, no interest can be claimed 

payaWe except when the law allows interest by way of damages 
except by for default. Where interest has been agreed to be paid, 
ment. but no Specific rate of interest has been fixed, the current 
rate of interest is payable.* This is deternuned, prima 
facie, by the lex loci solutionis.® The mere payment of 
interest for several years without any previous agreement 
in that behalf does not confer any right to have such 
payment continued.® A continued payment of less than 
the agreed interest may be construed as a tacit agreement 
for such lesser amount, but mere non-payment is not 
evidence of an agreement not to pay.' 
How the The obhgation to pay interest is determined: (1) by 
to ply '"^ J'elease ; * (2) by payment of the principal debt (but 
interest is without prejudice to the right to recover interest already 
mined. accrued due) ; ^ (3) by judgment. A claim for damage- 
interest is merged in the judgment, but, according to 
Voet, this does not apply to interest stipulated for in 
a contract.^" 
Tender. ' Tender ' is an offer of payment which, to be effectual, 

1 Dyason v. Rwthvm (1860) 3 S. 282 ; Beuler v. Yates [1904] T. S. 
856 ; Cloete v. Roberts (1903) 20 S. 0. 413. The law is the same in 
Ceylon; Pidle v. Candoe (1875) Ramanathan, 1872-6, p. 189; Peria 
Carpen v. Herft (1886) 7 S. 0. C. 182 ; and in Brit. Gui. ; Money 
Lenders Ordinance (No. 16 of) 1907. 

2 Voet, 22. 1. 20 ; V. d. K. Th. 548 ; (Ceylon) Pulie v. Candoe, vhi sup. 

3 Voet, 22. 1. 19; V. d. K. Th. 549; (Ceylon) Ord. No. 5 of 1852, 
sec. 3. In Brit. Gui. the rule of the Roman-Dutch Law as to compound 
interest holds good ; and interest may not be claimed in excess of the 
principal [G.]. * Voet, 22. 1. 8. 

5 Voet, 22. 1.6. « Voet, 22. 1. 13. ' Voet, 22. 1. 14 _ 

* Voet, 22. 1. 15. By the Roman-Dutch common law rent is ipso 

jure remitted in case of hostile incursion and other calamities, but 

the law does not, as a rule, give a similar indulgence in the matter 

of interest. " Cens. For. 1. 4. 4. 30. " Voet, 22. 1. 16, 



OPERATION OF CONTRACT 225 

must be made ' to a person who is competent and author- 
ized to receive payment, and must be clear and unqualified 
and unconditional, and in strict conformity with the 
terms of the original contract '} According to Voet mere 
tender of principal and interest does not prevent interest 
continuing to run unless accompanied by consignation 
and deposit.- In the modern law consignation is not in 
use. The same effect now results from simple tender, 
if regularly made, and a fortiori from payment into 
Court. 

The law lays down special rules as to place and time of Rules of 
payment by which, in the absence of contrary expression, JT^i^*" ' 
the parties are bound. As regards place, performance of pay- 
must prima facie be made where the obligation was ™''°*' 
contracted, unless another place of performance has been 
expressly or impUedly agreed.* But, where a thing is in 
question, the debtor is not as a rule bound to bring it to 
the house of the creditor. Such at least is the opinion of 
Voet, who says that other writers think differently.* It 
follows from this view that in the absence of agreement or 
clear proof of custom to the contrary the delivery of 
goods sold should be made at the place where they were 
when sold,® and if goods are to be manufactured the place 
of delivery wUl be the place of manufacture.* 

Next as regards time, if no time for performance is (6) time 
expressly or impUedly agreed, performance falls due ^^^/' 
immediately,' i. e. after a reasonable time.^ If the con- 
tract is expressed to take effect from a certain day or 

1 4 Maasdorp, p. 141. ^ Voet, 22. 1. 17. 

3 Gr. 3. 39. 9 ; Voet, 46. 3. 12. 

* Voet, itbi sup. See also Schorer ad Grot, loc cit., and Van Leeuwen, 
4. 40. 6 ; Gens. For. 1. 4. 32. 14-15. 

5 Oilson V. Payn (1899) 16 S. C. 286. 

« Richards, Slater S Go. v. FtdUr <fc Go. (1880) 1 E. D. C. 1 ; 
Goldhlat V. Merwe (1902) 19 S. 0. 373. 

' Gr. 3. 3. 51 ; Voet, 46. 3. 8 ; V. d. L. 1. 14. 9. 

* Dig. 46. 3. 105: quod dicimus . . . debere statim solvere, cum 
aliquo scilicet temperamento temporis intellegendum est^j nee enim 
cum sacco adire debet. What is a reasonable time depends upon the 
circumstances. Goldschmidt v. Adier (1884) 3 S. C. 117 ; De Waal v. 
Adler (1887) L. R. 12 App. Ca. 141. 

1713 Q 



226 THE LAW OF OBLIGATIONS 

subject to a suspensive condition, performance is not 
due until the day arrives or the condition is satisfied.^ 
When a day is named for performance the debtor is not 
in default until the day is wholly past, for he has the 
whole day for performance.^ The same principle applies 
when a thing is to be done in a named month or year. 
Sometimes a stipulation as to time is imphed from an 
agreement as to place ; ^ for if a place is named for 
performance time enough is understood to be allowed 
to enable the promisor conveniently to reach the place 
destined for performance,* unless it appears that the matter 
has been previously arranged so as to allow of performance 
taking place by means of agents at the place intended.^ 
Even when a contract fixes a definite time for performance 
the Court will consider whether the true intention of the 
parties at the time of contracting was to fix a reasonable 
time or to make time of the essence of the contract.* 
Whether time is or is not of the essence of the contract 
must be decided by the Court in view of the circumstances 
of each particular case. 
May per- Just as a debtor cannot be compelled to perform before 
formance performance falls due,'' so it would seem reasonable that 

be made ^ ' 

before it a creditor should not be compellable to accept performance 

" "® ' before the time agreed. But there is a text in the Digest ^ 

which seems to imply the contrary, for Venuleius says : 

' quod in diem debetur ante solvi potest, Meet peti non 

potest.' Voet, however, suggests that this dictum should 

be Hmited to the case where postponement of payment 

has been agreed upon for the exclusive benefit of the 

debtor. It would not apply, for instance, where money 

had been lent at interest for a fixed period.^ Schorer ^ 

1 Voet, 46. 3. 12. ^ (jr. 3. 3. go ; Voet, 45. 1. 19. 

3 Gr. 3. 3. 53. * Dig. 45. 1. 73 pr. 

« Dig. 45. 1. 141. 4 ; Voet, 45. 1. 19. 

" Bergl & Co. v. Trott Bros. (1903) 24 N. L. R., at p. 518, per Bale C.J. 

' Voet, 46. 3. 12. 

« Dig. 45. 1. 137. 2 {ad fin.) ; Sande, Decis. Fris. 3. 16. 1. Grotius 
(3. 39. 9) agrees, and Van der Linden (1. 14. 9). 

» Voet, 12. 1. 20 ; Van Leeuwen, 4. 40. 5 ; Cens. For. 1. 4. 32. 16; 
V. d. K. Th. 542. " Ad Grot. 3. 39. 9. 



OPERATION OF CONTRACT 227 

admits prepayment in this case also, but it must include 
payment of futiure interest as well as of interest already 
accrued due. 

Section III 

The Consequences of Non-performance. 

In the last section we discussed the duty of performance. In what 
We are now to consider what happens if that duty is not f^fi^^e to 
carried out. If a party fails to perform or fails in perform- perform ia 
ing what he has undertaken, either he can justify his ^"® ' ^ 
failure or he can not. If he can, he incurs no liability. 
If he cannot, he has broken his contract and must suffer 
the consequences. 

The cases in which non-performance is justified may 
be referred to one or other of three heads : viz. 

(1) impossibOity of performance ; (2) suspensive 
condition ; (3) failure on the other side. 

1. Impossibility of performance. ' Impossibihum nulla (o) im- 
obligatio est.' If performance is physically impossible o^pg^!^'*'^ 
at the time of agreement, no obUgation arises. The formance; 
same principle appUes if performance is legally impossible 

or positively illegal. If performance becomes impossible 
subsequently, the obhgation is in certain cases discharged,^ 
as it is in every case if performance becomes illegal. 

2. Suspensive condition. If a person has undertaken to (6) sus- 

^ It is not easy to assign the topic of impossibility to any one place 
in the theory of contract. The impossibility may be such as to negative 
any serious intention to contract {supra, p. 198) ; or it may operate 
to make the agreement of the parties inefEectual on the ground of 
fundamental error {supra, p. 193), and to relieve the promisor from 
the duty of performance. This is the connexion in which the subject 
is dealt with here. The general rule is that if the impossibility is 
absolute or objective the promisor incurs no liability; but if it is 
relative or subjective (i. e. impossible for him, but not for everybody) 
he is bound. Dig. 45. 1. 137. 5 : Si ab eo stipulatus sim qui effioere 
non possit, cum alio possibile sit, jure factam obligationem Sabinus 
scribit. Lastly, the impossibility may arise subsequently to the 
contract and in that case it will sometimes operate to discharge the 
promisor from liability (infra, p. 240). See on the whole subject 
Moyle, Institutes of Justinian (4th ed.), p. 409 ; Windscheid, Lehrbuch 
des Pandektenrechts, vol. ii, § 264. 

Q 2 



228 THE LAW OF OBLIGATIONS 

pensive perform in a certain event, it is plain that unless 
condition; ^^^^ ^jj^^j^ ^^lat event happens performance cannot be 

demanded. 
(c) failure 3. Failure on the other side. Where performances are 
other^side ^^^ from both parties to a contract, performance by one 
is usually conditional upon performance by the other. 
It may be that one is to perform before the other, or that 
both are to perform concurrently. In the first case 
performance on the one side is said to be a condition 
precedent of performance on the other. In the second case 
each performance is a concurrent condition of the other. 
Thus, if I am to buy your house provided that you first 
put it in repair, if you fail to repair I am not bound 
to buy. Again, in an ordinary contract of sale, in the 
absence of agreement to the contrary, payment and 
dehvery are concurrent conditions. I need not dehver, 
imless you are ready and willing to pay. You need not 
pay, unless I am ready and willing to deliver. If the one 
party sues for delivery without tendering payment, or 
for payment without tendering dehvery, in either case 
the other party is under no habihty to perform. Once 
more : I am not bound to continue ready and wiUing to 
perform, if you on your side make it quite plain that you 
do not intend to do your part.^ Therefore, if you refuse 
to perform, or disable yourself or me from performing, 
or announce your intention not to perform,^ I on my 
side am released from the duty of performance. If you 
do not wholly decline to perform, but perform badly or 
incompletely, it is a question of fact in each case whether 
your failure in performance wiU justify me in refusing 
to perform. As a rule I am not released from my duty of 
performance unless your failure in performance amounts 
in effect to a repudiation by you of your duty under the 
contract. 
Breach In the absence of any of the above excuses for non; 

f "1^' A performance a party who fails to perform or who fails in 

vTSiCv 8bXi.(X 

1 Voet, 22. 1. 29. 

2 Bergl cfc Co. v. Troit Bros., uhi sup. at p. 515. 



OPERATION OF CONTRACT 229 

performance has broken his contract and is hable to the its con- 
consequences which the law attaches to his default. sequences. 

The consequences to the defaulting party of breach of 
contract are principally three : (1) He becomes or may 
be placed in mora and incurs the further liabiUties conse- 
quent thereon. (2) He is Hable to pay damages. (3) He 
may, in a fit case, be compelled to specific performance. 
We will deal with these three consequences in order. 

1. Mora. The word means ' delay ' or ' default '. In i. Mora, 
its technical sense it means a culpable delay in making ^^her-"^ 
or accepting performance.'^ Whether in any given case 
such delay has taken place is a question of mixed law 
and fact.^ 

Mora is distinguished as mora ex persona and mora ex re. (a) mora 
' Mora ex persona ' occurs when a debtor after demand gona^.'^or 
regularly made fails to perform. Demand may be made 
either to the debtor or to his agent ; in which last case it 
takes effect so soon as it comes to the debtor's knowledge.^ 

' Mora ex re ' takes place by operation of law without (6) mora 
demand according to the maxim ' Dies interpeUat pro ^^ ^'^' 
homine ', i. e. lapse of time takes the place of demand.* 
This means that when performance is to be made on or 
by a fixed day, if performance is not made on or by such 
day, the party liable is at once in mora, demand being 
in such case unnecessary. 

In some cases mora arises by immediate operation of 
law — ' lege ipsa quasi interpellante ' . Instances are : {a) the 
thief, until he returns the stolen property ; (6) one who 
owes money to a ward or to the Treasury ; (c) a pur- 
chaser who takes the fruits of the property without 
having paid the pxirchase-money ; {d) a partner, a 
negotiorum gestor, or other such person who converts 
partnership money or the principal's money to his own 



1 Voet, 22. 1. 24. 

2 Dig. 22. 1. 32 pr. ; Voet, ubi sup. 

^ Voet, 22. 1. 25 ; unless in the circumstances notice to the agent 
were held to be notice to the principal. 

^ Voet, 22. 1. 26. ^ Voet, 22. 1. 27. 



230 THE LAW OF OBLIGATIONS 

Effect of The effect of mora as regards the debtor is to render 
(^ron'the him Uable for mora-interest and mesne profits ; for any 
part of the agreed penalty ; for damages ; for any increase in value 
debtor ; ^.^^^ ^.^^ ^^^^ ^^ delay of a thing to be dehvered, if the 

thing perishes before dehvery ; and, generally, for any 
accidental destruction, unless the thing would have 
equally perished in the hands of the creditor.-^ 
(6) on the Mora on the part of the creditor, i. e. delay in accepting 
''r^'^d'tor^" payii'1611't o^ performance, determines an antichresis and 
transfers the risk of a thing from the debtor to the 
creditor. Mora usually affects the guilty party alone; 
a co-debtor is not prejudiced. Whether a surety is liable 
for the mora of his principal depends- largely upon the 
extent of the obligation which he has undertaken.^ 
Judicial Mora is further distinguished as judicial and extra- 
extra- judicial. The first arises from the institution of legal 
judicial proceedings ; the second where there is no demand, or 
where the demand is extra-judicial. According to Voet 
extra-judicial mora does not usually ground a claim for 
mora interest.^ But in the modern law, as a rule, no 
distinction is made between judicial and extra-judicial 
demand.* In one case the distinction is still of impor- 
tance, viz. that acquisition by prescription and the Umita- 
tion of actions are interrupted by judicial demand alone.' 
Mora- Where mora-interest is claimable the amount is defined 

in ere= . ^^ ^^^ custom of the country or by the practice of the 
Court.® After judgment nothing can be claimed as 
mora-interest which has not been allowed in the judg- 
ment.' The Court may, if it sees fit, allow a time for pay- 

1 Voet, 22. 1. 28. 

'' Voet, M6i sup. and 46. 1. 13. Failure in performance by the 
principal always renders the surety liable (Dig. 22. 1. 24. 1 ; 45. 1. 88) ; 
but he is not always liable for mora-interest or mesne profits. 

3 Voet, 22. 1. 11. But see V. d. K. Th. 483. 

^ Snook Y. Howard (1893) 8 E. D. C. 55. 

5 Voet, 41. 3. 20 ; 22. 1. 28 ; 44. 3. 9. 

" Schorer ad Gr. 3. 10. 10 ; Stockmans Decis. Brabant. 77 ; Voet, 
22. 1. 11. In contracts of assurance either party being in mora paid 
interest at the rate of 12 per cent. Gr. 3. 24. 19 ; Voet, 22. 1. 3. 

' Voet, 22. 1. 16 ; Cens. For. 2: 1. 33. 5. 



OPERATION OF CONTRACT 231 

ment ; in which case the debtor is not liable for interest How 
until the time has elapsed/ ^°^^^l 

Mora may be purged : (a) by novation of the principal 
debt ; (6) by release ; (c) by mora of the creditor, e. g. 
if the debtor fails to pay punctually because the creditor 
was not present to receive payment at the appointed time 
and place ; ^ (d) by subsequent tender on the part of the 
defaulter/ but not so as to deprive the creditor of any 
fresh right which may have already accrued to him, 
such as the right to exact a penalty in respect of the 
original default.* 

2. Damages. A person who has broken his contract Damages, 
is liable to make compensation to the injured party. 
The law relating to this subject is treated in modern 
books under the head of ' the measure of damages '. 
The Roman-Dutch writers have not very much to say 
about it. Voet, however, lays down three rules which 
are of general apphcation : ^ atLz. (a) Under the head of 
damages account is taken of advantage lost and damage 
sustained (terwrn cessans, damnum emergens), (b) Damages 
must not be too remote, (c) The standard is a commercial 
standard. The plaintiff's peculiar affections and feeUngs 
are not taken into account. For the rest, the law of 
damages in the modern Roman-Dutch Law is substantially 
the same as in Enghsh Law. It is necessary in each case 
to inquire whether the law lays down any special rule 
as to the measure of damages in the class of contracts 
in question. Thus, in a contract of sale, when the pur- 
chaser refuses to take delivery and the property is re-sold 
at a loss, the measure of damages recoverable from the 

^ Voet, 22. 1. 29. A debtor cannot plead difBculty of performance 
as an excuse. Dig. 45. 1. 2. 2 {ad fin.) ; but casus superveniens and 
other special circumstances may entitle him to indulgence. Voet, 
ubi sup. ; Dig. 22. 1. 21-2. 

2 Voet, 22. 1. 30. 

^ Dig. 45. 1. 73. 2 : Stichi promissor post moram offerendo purgat 
moram : certe enim doli mali exceptio nocebit ei, qui pecuniam 
oblatam accipere noluit.— Dig. 46. 3. 72. 1 : Verum est eum qui inter- 
pellatus dare noluit, ofEerentem postea periculo liberari. 

« Voet. 22. 1. 31. » ^ Voet, 45. 1. 9. 



232 THE LAW OF OBLIGATIONS 

original purchaser is the difference between the contract 
price and the amount realized on the re-sale/ 
Penalty If the parties to a contract have agreed for a penalty 
Hquidated i^ the event of non-performance, the penalty in question 
damages, ig incurred by the party in default. In the Dutch Law if 
the penalty was much larger than the actual loss it was 
within the competence of the Court to reduce it.^ On 
the other hand if the penalty proved insufficient to cover 
the damages the aggrieved party might fall back on his 
original cause of action.^ The modern law has taken 
over the Enghsh distinction between Penalties and 
Liquidated Damages.* 
(3)Speoifio 3. Specific Performance. When the performance due 
Formanoe froi^ ^ party to a contract consisted in an act it was 
a moot question with the Dutch jurists whether, except 
in case of a promise to marry, the law permitted a decree 
of specific performance. In other words, could a party 
to a contract be compelled to do the very thing which 
he had promised, or was it always optional for him to 
pay the damages instead ? The latter view is taken 
by Grotius and by Voet.^ But in the modern law the 
Court, following the English practice, wiU in a fit case 
decree specific performance. This it does more particu- 
larly in relation to contracts for the purchase and sale of 
land. 

1 Brest & Ladon v. Heydmrych (1896) 13 S. C. 17. 

2 Voet, 45. 1. 13. See (Ceylon) Fernando v. Fernando (1899) 
4 N. L. R. 285. When a penal rate of interest is stipulated for, 
the amount recoverable may not exceed the amount of the principal. 
V. d. K. Th. 481. ' Voet, 46. 2. 4. 

" (South Africa) Bartholomew v. Johnson (1901) 22 N. L. R. 79; 
Chaffer v. Richards (1905) 26 N. L. R. 207; Commissioner of Public 
Works V. Hills [1906] A. C. 368. (Ceylon) Saibo r. Cooray (1892) 
1 S. C. R. 233 ; Webster v. Bosanquet [1912] A. C. 394. 

5 Gr. 3. 3. 41 ; Voet, 46. 3. 10. Contra : Van Leeuwen, 4. 3. 13 
and 4. 17. 1 ; Groen. ad Gr. vbi sup. ; Neostad. Supr. Cur. Decis. 
no. 50; V. d. K. Th. 512; Wessels, History of the B.-D. L., 
pp. 612 ff.' SeeBergl & Co. v. Trott Bros. (1903) 24 Natal Law Reports 
at pp. 512 ff. where the South African cases are collected by Bale C. J. 
Damages may as a general rule be claimed either alternatively with — 
{Bos V. Simpson [1904] T. S. 254) — or in addition to — (Silverton Estates 
Co. r. Bellevue Syndicate [1904] T. S. 462) — ^specific performance. For 
Ceylon Law see Pereira, p. 579. 



INTERPRETATION OF CONTRACT 233 

CHAPTER III 
INTERPRETATION OP CONTRACT 

Ie an action is brought upon a contract, the plaintiff Proof of 
must prove its terms, and identify the defendant as the 
party liable. The proof of contract is part of the law of 
evidence, and as such hes outside the scope of this work. 
Let it sufi&ce to point to the general rule that in every case 
the best evidence must be produced. In the case of a 
written contract this means the original written instru- 
ment together with so much parol evidence as is necessary 
to explain the circumstances of the contract and the nature 
of the Hability alleged. When the written contract has inter- 
been produced, the next step is for the Court to interpret of" ^ '°" 
its meaning, i. e. to construe its language and to determine contract, 
its legal effect. To assist the judge in this task the law 
lays down certain rules of construction, which, however, 
must be regarded not as rules of law from which there is 
no escape, but rather as finger-posts or indicia, whereby 
the Court may arrive at the intention of the author or 
authors of the instrument. It is true that a man must be 
taken to mean what he says, and, as a rule, if he uses 
technical phrases he will be understood to have used them 
in their technical meaning. None the less, a man is his 
own interpreter, and a rule of construction, however 
respectable, will not be allowed to override a reasonable 
inference as to the disposer's intention, to be collected from 
an examination of the whole and of every part of the 
instrument in question. 

The following rules of construction are taken from Rules of 
Van der Linden's Institutes} l°^^_ '"°" 

1. In agreements we should consider what was the 
general intention of the contracting parties rather than 
follow the Hteral meaning of the words. 

2. When a stipulation is capable of two meanings it 
should rather be construed in that sense in which it can 

1 V. d. L. 1. 14. 4. 



234 THE LAW OF OBLIGATIONS 

have some operation than in that in which it cannot 
have any. 

3. Whenever the words of a contract are capable of two 
meanings they should be construed in that sense which is 
most consonant with the nature of the agreement. 

4. That which appears ambiguous in a contract should 
be construed according to the usage of the place where 
the contract was made. 

5. Usage has such weight in the construction of agree- 
ments that the usual stipulations are understood to be 
included in them, although not expressly mentioned. 

6. A stipulation must be construed by the aid of the 
other stipulations contained in the contract, whether they 
precede or follow it. 

7. In cases of ambiguity a stipulation must be construed 
against the party who has stipulated for anything, and in 
favour of the release of the party who has contracted the 
obligation. 

8. However general the expressions may be in which 
an agreement is framed, they only include the matters in 
respect of which it appears that the contracting parties 
intended to contract, and not those which they did not 
contemplate. 

9. Under a general term are comprehended aU the 
specific matters which constitute this generality, even 
those of which the parties had no knowledge. 



CHAPTER IV 

DETERMINATION OP CONTRACT 

How A CONTRACT may be determined in any one of the fol- 

ate deter- lowing ways : viz. by (1) performance and its equivalents ; 
mined. (2) release; (3) novation; (4) impossibility of performance ; 

(5) condition subsequent ; (6) prescription. We shall deal 

with each of these in order. 
1. Per- 1. Performance and its equivalents. The subject of 

InTitr" performance and of substituted performance has been 



DETERMINATION OF CONTRACT 235 

considered in a previous chapter. We shall speak here equiva- 
of various processes, which in certain cases have the same 
legal consequences as if the contract had been actually 
carried out. 

Tender is an offer of performance. If the debtor's Tender. 
duty consists in something to be done, it is not his fault 
if he duly offers performance and the creditor refuses to 
accept. In such an event the debtor may usually treat 
the contract as determined by the creditor's refusal. He 
is not required to waste his time in soliciting an acceptance, 
which may never be given. If, on the other hand, the 
performance due from the debtor consists in giving, the 
case is different. Mere tender does not, as a rule, discharge 
the debt. The debtor, tender notwithstanding, must con- 
tinue ready and willing to pay, and if sued for the money 
must plead the tender and pay the money into Court. He 
wiU then be entitled to his costs in the action. 

The effects of valid tender are ^ : (1) to reheve the Effects of 
debtor from liabiHty in case of accidental destruction of *^'^"^^'^- 
the thing to be given ; (2) to discharge a penalty agreed 
to be paid in the event of non-performance ; (3) to arrest 
the accrual of interest, and to prevent mora-interest from 
arising.^ This third consequence followed in some cases in 
the Roman Law and follows in all cases in the modern law. 
In the Roman-Dutch Law of HoUand tender did not arrest 
the course of interest unless it took the form of consigna- 
tion and deposit.* 

Consignation and deposit was an institution, no longer cjoiisigna- 
in use in the modern law,* which permitted a debtor with deposit. 

1 Voet, 46. 3. 28. 

2 Voet, 22. 1. 17 ; Groen. de leg. abr. ad Cod. 4. 32. 6. 

^ GrotiuB (3. 40. 2-3) calls it onderrecht-legging. Tender made in 
court prevented mora-interest from running. Voet, m6j sup. ; Van 
Leeuwen, 4. 11. 3. 

* It existed already in Roman Law. Cod. 8. 13 (14). 20 (consignato 
atque deposito) ; Dig. 22. 1. 7 (obsignavit ac deposuit). In the Dutch 
Law tender was first made through an officer of the Court or a notary 
with two witnesses ' met opene beurse en klinkende geld '. Boey, 
Woorden-tolk, siib voce Consignatie. See also V. d. K. Th. 824 ; Pothier, 
Traite des Obligations, sees. 536 ff. The institution exists in most 
modern systems of law. (Fr.) Cod. Civ., sees. 1257 ff. ; (Germ.) B. G. B., 



236 THE LAW OF OBLIGATIONS 

the approval of the Court to seal and deposit a specific 
thing or sum of money with some third person to hold 
for the benefit of the creditor and at his risk. Such 
deposit validly made, and not revoked by the debtor, had 
the same legal effect as payment .•'■ 
Merger. Confusloii or ' merger ' ^ takes place when by succeeding 

to the claim or liabiHty of another, a person who owed 
to that other a duty or had against that other a claim, 
becomes in his own person both creditor and debtor in 
respect of the same performance, with the result that the 
obhgation is extinguished. This usually occurred when, 
without benefit of inventory, the creditor succeeded as heir 
to the debtor, or vice versa} Since universal succession 
is unlaiown in the modern law, confusion of this kind no 
longer occurs as a direct consequence of death.' But it 
is still possible in the case of a residuary legatee, who 
has a claim against the estate ; for if the estate is 
solvent he may not think it worth his while to anticipate 
the distribution of assets by demanding payment from the 
executor of the deceased. Another case of confusion 
occurs when a principal debtor becomes surety, or a surety 
becomes principal debtor, in respect of the same debt, with 
the residt that the accessory obligation is extinguished.* 
Com- Compensation or set-ofE * takes place when a debtor 

orset-off! has a counter-claim against his creditor. If the creditor 
sues his debtor, the creditor's claim is deemed to have 
been extinguished or reduced by the amount of the 
counter-claim from the moment when the right to enforce 

sees. 372-86 {Hinterlegung) ; (HoU.) B. W., sees. 1440-8 (consignatie 
of bewaargeving) ; (Ital.) Cod. Civ., sees. 1259-66. The modem equi- 
valent is payment into Court. But money so paid can probably not 
be withdrawn without an order of Court. 4 Maasdorp, p. 144. 

1 Gr. 3. 40. 3 ; Voet, 46. 3. 29. Pothier (see. 545) discusses the 
position of a surety in case the debtor has made a valid consignation 
and afterwards resumes the property. 

^ Vermenging, Schuldvermenging. Gr. 3. 40. 4 ; Voet, 46. 3. 18-27 ; 
V. d. L. 1. 18. 5; Boey, Woorden-tolk, sttb voce Confusie; Pothier, 
sees. 605 ff. 

3 Gr. 3. 40. 5 ; Voet, 46. 3. 27. 

* Voet, 46. 3. 20 ; Pothier, sees. 383 ff. 

^ Vergelyking, oompensatie, schuld-vereffening. Gr. 3. 40. 6 ff. ; Voet, 
16. 2. 1 : V. d. L. 1. 18. 4. 



DETERMINATION OF CONTRACT 237 

the counter-claim by action vested in the defendant or in 
his predecessor in title.^ Compensation is only allowed 
where both claim and comiter-claim are liquid, uncon- 
ditional, and presently enforceable,^ and relate to fungible 
things ejusdem generis.^ Thus, money may be set off 
against money or wine against wine, but not wine of one 
quality against wine of another. A merely natural debt 
is available as a set-off * except in cases where the law 
forbids it. In certain cases compensation is disallowed 
on grounds of public policy. Thus, a person who has 
got possession of property by theft or other wrongful act 
may not plead a set-off against the owner's claim to 
recover what belongs to him ; nor is this defence available 
to one who is indebted to the State or to a local govern- 
ment for taxes or rates. ^ 

The effect of compensation (which, however, must be Effect of 
specially pleaded *) is to extinguish the creditor's claim in tion!'™^^" 
whole or in part,'' and in the same measure to arrest the 
accrual of interest, to set free sureties and real securities, 
and to relieve the defendant from a penalty to which he 
would otherwise be Hable, provided that the right of set- 
off has vested before the date when payment would, but 
for the set-off, have fallen due.^ Further, if defendant has 
paid his creditor without claiming set-off he may get Ms 
money back to the extent of the set-off by the condictio 
indebiti.* Where a right of action has been ceded, the 
debtor may set up against the cessionary any set-off avail- 
able to him against the cedent ; for since compensation, 

"■ Voet, 16. 2. 2. A counter-claim is ineffectual as compensation 
unless it is available against a plaintiff in the capacity in which he 
is suing. De Villiers v. Commaile (1846) 3 Menz. 544. 

2 Cod. 4. 31. 14. 1 ; Gr. 3. 40. 8 ; Cens. For. 1. 4. 36. 3 ; Voet, 16. 2. 17. 

3 Voet, 16. 2. 18. * Voet, 16. 2. 13. 

* Gr. 3. 40. 11 ; Voet, 2. 16. 16. In the Roman Law compensation 
could not be pleaded to an actio depositi directa. Cod. 4. 31. 14. 1 ; 
4. 34. 11. This does not hold good in the modem law. 4 Maasdorp, 
p. 188. " Van Leeuwen, 4. 40. 2. 

' Gr. 3. 40. 7 ; Voet, 16. 2. 2. Van der Keessel (Th. 827) cites 
a decision to the effect that compensation maybe setup, after sentence, 
against execution of a judgment ; but this cannot be the law to-day. 

* Voet, ubi sup. ; V. d. L. 1. 18. 4. » V. d. L., ubi sup. 



238 THE LAW OF OBLIGATIONS 

if pleaded, takes effect ipso jure, the amount of the debt 
is mechanically reduced by the amount of the counter- 
claim from the moment when the right to assert it first 
vested in the debtor.^ 
2. Release. 2. Release.^ A debt may be released by way of gift,^ 
i.e. as an act of mere liberality on the part of the 
creditor, or in exchange for some advantage.* In the 
absence of proof to the contrary a release is presumed to 
be gratuitous.* No form of words is required.® It is 
enough that the creditor by words or conduct' declares 
his intention to abandon his right, and that this is accepted 
by the debtor or by some one else on his behalf. No one 
can release a debt who is not competent to alienate his 
Promise property.* A promise not to sue ® operates as a release 
not to sue. unless it is merely personal in its incidence, e. g. a promise 
not to sue A does not necessarily release his representa- 
tives after his death.^" But with this reservation a promise 
not to sue releases co-debtors and sureties,^^ and a promise 
not to sue a surety releases his principal.^^ If an instru- 
ment of debt is returned to the debtor, the debt is pre- 
sumed to be discharged.-^' 
Mutual In case of reciprocal promises each party may by agree- 

reiease. jnent release the other from performance, each returning 

^ Voet, 16. 2. 4. Por the law of compensation and set-off in Brit, 
Gui. see Rules of S. 0. 1900 and Petty Debts Eecovery Ord. No. 11 
of 1893 and Rules thereunder [G.]. 

^ Quijtschelding — -Acceptilatio — Liberatio. 

3 Gr. 3. 41. 6. 1 Voet, 46. 4. 1. ^ Gr. 3. 41. 6. 

^ Secus, jure civili. Inst. 3. 29. 1. 

' Gr. 3. 41. 7 ; V. d. L. 1. 18. 3. 

* Gr. 3. 41. 8 ; nor persons charged with the administration of another's 
property without power of alienation. Ibid. 

^ Pactum de non petendo. Van Leeuwen, 4. 40. 7 and Decker, ad loo, 

" Gr'. uU swp. ; Voet, 46. 4. 4. ; V. d. K. Th. 828 ; V. d. L. 1. 18. 3. 
Pothier, however, Traite des Obligations (sec. 681), says that a release 
of one co-debtor only releases the other to the extent to which the 
second is prejudiced by the release of the first by being deprived of 
the opportunity of claiming contribution from him. This view was 
adopted by the Transvaal Supreme Court in Divyer v. Ooldseller [1906] 
T. S. 126. 

^^ Gr. ubi sup. ; Voet, ubi sup. But V. d. L. dissents. 

" Gr. 3. 41, 10 ; V. d. L. ubi sup. 



DETERMINATION OF CONTRACT 239 

to the other any advantage he may have derived from the 
contract.^ 

3. Novation.2 The parties to a contract may, if they 3. Nova- 
please, enter into a new contract, putting an end to an *'°"" 
original liability, and substituting a new liability in its 
place. This is called Novation. Any agreement in that 
behalf express or tacit is sufficient ; ' but in case of doubt 
an intention to novate is not presumed.* Thus, a creditor 
is not held to novate his debt by merely allowing his 
debtor an extension of time for payment. Such an allow- 
ance, therefore, does not set free sureties or mortgages.^ 
Novation fails to take effect if the second contract is ipso 
jure void ; or conditional and the condition is not imple- 
mented ; or if the thing which forms the subject of the 
novating contract has previously perished.® 

Any debt may be novated, as well natural as civil and 
whether arising from contract or delict or judgment.'' 
The effect of novation is to discharge the old liabilities 
with all their incidents, such as interest, real and personal 
securities, and to purge any previous mora.* Novation 
may consist not only, as above, in the substitution of one 
debt for another, but also in the substitution of one debtor 
for another. This was known in Roman Law as delegation .* Delega- 
The consent of all three parties is required ; for though the ''°"- 
law allows the assignment of a claim without the consent 
of the debtor, so that a new creditor takes the place of 
an old one, there is no corresponding rule allowing the 
debtor to make over his liability to a third party, unless 

^ Handelbraeok — -Recessio a contractu. Gr. 3. 42. 2 ; V. d. K. 
Th. 833. 

^ Schuldvemieuwing — Novatie. Gr. 3. 43. 1 ; Voet, 46. 2. 1 ; 
V. d. L. 1. 18. 2. 

' Gr. 1. 43. 3 ; Voet, 46. 2. 2-3. Groenewegen {de leg. abr. ad 
Inst. 3. 30. 3) does not allow a tacit novation. — ' Mores nostros ab hoc 
jure civili non recessisse censeo.' * V. d. K. Th. 835. 

^ Gr. 3. 43. 4 ; V. d. K. Th. 836 ; nor a subsequent stipulation for 
a penalty (Voet, 46. 2. 4), or for substituted performance, or for interest, 
or for a higher rate of interest (Voet, 46. 2. 6). 

" Voet, 46. 2. 7. ' Voet, 46. 2. 9-10. 

8 Voet, 46. 2. 10; Holl. Cons., vol. ii. no. 126. 

° Overzetting — Delegatie. Gr. 3. 44. 2. 



240 THE LAW OF OBLIGATIONS 

the creditor, amd, of course, the third party,^ agree. In 
this case, as in the last, the intention to novate must 
clearly appear. The mere assignment by a debtor to his 
creditor of the debtor's claim against a third party, even 
though the third party consent, does not itself effect a 
novation. 
Novatio A third case of novation in Roman Law was incidental 
neoessana. ^^ judicial proceedings ^ and took place at the moment of 
litis contestatio. This, though admitted by Grotius,* did 
not entail the usual consequences of novation,* and may 
therefore be left out of account. 
Assigna- From delegation properly so called must be distin- 
tion. guished assignation,^ which takes place when a debtor 

requests his own debtor to pay his creditor, or refers his 
creditor to his own debtor for payment. The effect is to 
discharge the debtor from liability,* if, and only if, the 
creditor recovers his debt from the third party, unless of 
course the creditor agrees to accept the assignation in full 
discharge.' In other words, assignation is, as a rule, 
a conditional delegation. In the modem law the same 
result usually follows if a debtor gives his creditor a cheque 
or other such instrument in payment of a pre-existing 
debt. 
4. impos- 4. Impossibility of Performance. If a contract, possible 
per-'*'' °* when made, subsequently becomes impossible of perform- 
formance. ance, the parties may be discharged from future liability. 
The extent of this rule is not very accurately deter- 
mined. It relates more particularly to the destruction, 
without fault of the debtor and before he was in mora, 
of some specific thing which in terms of the contract he 
was bound to deliver.* It may extend also to other 

1 Gr. 3. 44. 3. " Gaius, iii. 180 ; Dig. 46. 2. 29. 

^ Gr. 3. 43. 3. * Voet, 46. 2. 1. 

^ Aenwijzing — ^Assignatie. Gr. 3. 45. 1. ' Gr. 3. 44. 5. 

' Van Leeuwen, 4. 40. 10 ; Voet, 46. 2. 13. 

' Gr. 3. 47. 1. In these cases the distinction between absolute and 
relative impossibility (swpra, p. 227, n. 1) does not apply. . ' Where the 
impossibility arises ex post facto its absoluteness or relativity is 
immaterial : the only question is whether it is due or not to the fault 
of the debtor ; provided, of course, that it is a fault for which, in the 



DETERMINATION OF CONTRACT 241 

cases, as, for example, when the parties contemplated as 
the foundation of their contract some condition or state 
of things which has since ceased to exist ; or when the 
party liable is disabled by illness, or prevented by a public 
enemy.^ Mere difficulty of performance furnishes no ex- 
cuse for non-performance.^ But a contract is discharged if 
performance becomes legally impossible (e. g. if the thing to 
be given passes extra commercium),* or positively illegal. 

5. Condition Subsequent. A contract may include, either 5. Condi- 
expressly or by implication, a provision for its determina- sequent 
tion after the lapse of a certain' time or upon the 
happening of a specified event. Upon the expiry of the 

time or the happening of the event, the parties are dis- 
charged from their obligations and the contract is at an 
end. Pothier gives in illustration a contract of surety- 
ship whereby the surety undertakes to be answerable for 
the payment of a loan for the period of three years only, 
or iintil the return of a certain ship. If the creditor has 
not put his debtor in mora by demanding payment before 
the term has expired or the ship returned, the liability 
of the surety is at an end. But if there has been default 
on the part of the debtor before the accomplislmient of 
the term or the happening of the event, the surety con- 
tinues bound to make it good, for he is now bound uncon- 
ditionally to answer for the principal debtor's default.* 

6. Prescription. Grotius treats prescription as a release 6. Pre- 
of a debt effected by operation of law,^ in consequence ^o^pt'on- 

particular relation, he is answerable.' Moyle, Institutes of Justinian 
(4tli ed.), p. 409 ; Windscheid, Lehrhuch des PandektenrecMs, vol. ii, 
§ 264. In recent cases, English and South African, the issue has 
been made to turn on what was, or ought to have been, in the 
contemplation of the parties at the time of contracting. See, e. g. 
Ward V. Francis (1896) 8 H. C. G. 82 ; and Morgan dk Ramsay v. 
Cornelius <k Hollis (1910) 31 Natal Law Reports, 447. 

1 Dig. 14. 2. 10. 1. 

^ Dig. 45. 1. 2. 2 {ad fin.): Non facit inutilem stipulationem difficultas 
praestationis. — Dig. 45. 1. 137. 4 : Et generaliter causa difficultatis 
ad incommodum promissoris, non ad impedimentum stipulatoris, 
pertinet ; i. e. difficulty of performance prejudices the promisor, and 
does not deprive the promisee of his action. 

^ Gr. 3. 47. 1 and 4. * Pothier, sees. 224-6 and 636. 

^ Quijtschelding door verjaring. Gr. 3. 46. 1. 

1713 R 



242 THE LAW OF OBLIGATIONS 

of the lapse of a certain period of time. His opinion, 

Does it which is also that of Voet, is that the effect of pre- 

the'right*^ scription is not merely to bar the remedy, but to 

or merely extinguish the right.^ But Van der Keessel says that 

rraiedy ? this view is not free from difficulty,^ and in South Africa 

' the more correct view is that prescription merely affords 

a ground of defence or exception to an action, and does 

not act as an extinguishment of the obligation ipso jure'? 

Periods of The periods of time fixed by the Roman and the Roman- 

tionln^" Dutch Law for the prescription of actions varied very 

Roman- greatly,* and, as th6 law relating to this matter is now 

law. generally regulated by statute, it is not necessary to 

enumerate them in detaU.^ Unless the law provides 

otherwise, the term of prescription is the third of a century, 

or, as some say, thirty years.* This is the usual period 

also for demanding restitutio in integrum, but, as we have 

seen, a claim to set aside a transaction on the ground of 

minority is barred after four years from the attainment 

of majority.'' A well-known clause (Art. 16) of the 

Perpetual Perpetual Edict of 1540, dealing with the prescription of 

October 4, actions, is now of little interest save as an exercise in 

1540, Art. translation. Since, however, it formed part of the law 

of the Transvaal imtU repealed by Act No. 26 of 1908, its 

content is appended.^ 

' All salaries of all Advocates, Attorneys, Secretaries, 
Physicians, Surgeons, Apothecaries, Clerks or Notaries 
or other workers ; hire of servants of either sex ; as also 
the price of merchandize sold by retail, and payment of 
tavern debts must be judicially demanded within two 
years of the day of the service, or work done, merchandize 

1 Gr. 3. 46. 2 ; Voet, 44. 3. 10. ^ V. d. K. Th. 874. 

' 4 Maasdorp, pp. 168-9. * See Voet, 44. 3. 5-7. 

^ For Ceylon see Ord. No. 22 of 1871 and Pereira, pp. 796 ff.; for 
Brit. Gui. Ord. No. 1 of 1856. 

« Gr. 3. 46. 3 ; Van Leeuwen, 4. 40. 8 ; Voet, 44. 3. 8 ; Bynkershoek, 
Quaest. Jur. Priv. lib. ii, cap. xv {ad init.) ; V. d. K. vbi sup. ; V. d. L. 
1. 18. 8. 

' Supra, p. 43 ; Gr. 3. 48. 13; V. d. K. Th. 881. 

' It was repealed in Cape Colony by Act No. 6 of 1861, sec. 4. Is 
it in force in O. F. S. ? See Rabie v. Neebe (1879) 0. F. S. 5; Nathan, 
Common Law of S. A., vol. iv, p. 2400. 



DETERMINATION OF CONTRACT 



243 



delivered, or score credited;^ and after the expiry of 
the said time no such claims may be lawfully pursued 
unless there shall be thereof a cedulle or letter of obligation ; 
by force whereof the creditor may sue for such debts 
within ten years against the principal debtor. But if 
such debtor shall die, then the creditor shall be bound 
to pursue his claim against the heirs within two years 
after the debtor's death, reckoned from the day on which 
the creditor shall have had knowledge of the death of 
his debtor, and not afterwards. But after the expiration 
of the said time such debts shall be conddered duly 
discharged, and no action shall lie in respect thereof.' ^ 

Prescription does not begin to run against minors or 
lunatics or other persons under like disability, nor against 
such as, owing to war or public service, are absent from the 
jurisdiction and unable to prosecute their claim.^ 

Prescription is interrupted by judicial interpellation or 
by any acknowledgement of the debt.* Such at least was 
the Roman -Dutch common law ; but as the matter is 
regulated in the Colonies by local Acts and Ordinances, 
the student should be careful to consult the statute law 
of his own Colony. 

Rights of action arising out of breach of contract are 
in Roman-Dutch Law extinguished in the same way as 
primary rights arising ex contractu.® 

1 Gelagh gheborcht. See 25 S. A. L. J. p. 429. 

M G. P. B. 319; Gr. 3. 46. 7; Van Leeuwen, 2. 8. 11. Van der 
Keessel (Th. 876) discusses the question whether this article is still 
observed in practice, and concludes 'in this conflict of opinions the 
proof of a custom contrary to the law may, I think, be justly thrown 
on the party alleging it '. Van Leeuwen, however, in the seventeenth 
century, thought it abeady obsolete through disuse. 

3 Voet, 44. 3. 9 [ad fin.) : Neque minoribus curritaut fittiosis aliisque 
similibus, qui minorum jure censentur ac sub cura sunt, neque belli 
aut alias reipublicae causa absentibus. But Schorer ad Gr. 2. 7. 9 
(note 37) admits no exception except ' pupillarem aetatem ' (quia est 
regula quod durante pupillari aetate dormiat praescriptio). Decker 
(ad Van Leeuwen, 2. 8. 12) says that neither minors nor those who are 
unable to manage their own affairs nor persons absent from the juris- 
diction are relieved ipso jure, i. e. without restitutio in integrum. 

* Voet, libi sup. 

^ But not by the same term, for the effect of litis contestatio is 
to render the obligation ' perpetual '. Voet, 22. 1. 28 ; Dig. 27. 7. 8. 1 
(ad fin.) : Nam litis contestatione et poenales actiones transmittuntur 
ab utraque parte et temporales perpetuantur. 

R2 



Against 
whom 
prescrip- 
tion does 
not run. 

How 
prescrip- 
tion is 
inter- 
rupted. 



Prescrip- 
tion of 
rights of 
action for 
breach of 
contract. 



244 THE LAW OP OBLIGATIONS 

CHAPTER V 

PLURALITY OP CREDITORS AND DEBTORS 

Co- The parties to a contract are liable or entitled as co- 

creditors creators or co-debtors (correi stipulandi vel credendi — 
debtors, correi promittendi vel debendi) when two or more stipu- 
late or promise as principals and not as sureties at the 
same time in respect of the same performance, with the 
intention of becoming thereby entitled or liable severally 
in respect of the whole performance {singuli in solidum) 
and not merely pro rata parte} 
Co-debtor The position of a co-debtor must be distinguished from 
eSs'hed *^^* °^ ^ surety. Each co-debtor is liable as priacipal. 
from The liability of the surety, on the other hand, is merely 
^™^ ^' accessory and secondary. To constitute the relation of 
co-creditor or co-debtor, as above defined, it is not enough 
that two or more persons should stipulate for or promise 
the same thing at the same time, unless they do so with 
the intention of becoming each entitled or each liable in 
respect of the whole debt. In the absence of evidence of 
such intention, the parties, even in the earUer civil law, 
were not correi but were each entitled or liable only in 
respect of his rateable share.^ In the Roman-Dutch La.w, 
Bene- foUowing herein the latest Roman Law, a co-debtor cannot 
1?™™ . be made liable in solidum unless there is an express agree- 
when ment in that behalf,^ and the other debtor or debtors are 
available. eYi(jently insolvent or absent from the jurisdiction,* or 

^ Voet, 45. 2. 1, and Oompendiurn, 45. 2. 1. 

^ Dig. 45. 2. II. 1-2 (Papinian). 

^ Authent. ad Cod. 8. 39 (40). 2. Hoc ita si pactum fuerit speciale 
unumquemque teneri in solidum. . . . Sin autem non oonvenerint 
. speoialiter, ex aequo sustinebunt onus. Sedet si oonvenerint, ututerque 
eorum sit obligatus : si ambo praesentes sint et idonei, simul oogendi 
sunt ad solutionem. See Groenevs^egen, ad loo. The authentica is taken 
from Nov. 99 c. 1 (a. d. 539), which only refers to sureties, but is never- 
theless, according to the general opinion and common consent, also 
extended to two or more joint principal debtors. Van Leeuwen, 4. 4. 1 ; 
V. d. K. Th. 494. 

* But one of two co-debtors is not liable for the share of an absentee 
co-debtor unless he has specifically bound himself in solidum. Akoek 
V. Du Preez (1875) Buch. 130. 



PLURALITY OF CREDITORS AND DEBTORS 245 

unless the defendant has clearly renounced the beneficium 
divisionis. It follows that, where the above conditions do 
not exist, aU the co-promisors must be made defendants 
to the action and condemned pro virili parte. If the 
plaintiff proceeds against one co-promisor in solidum, the 
defendant may plead the beneficium divisionis, and reduce 
the plaintiff's claim to the amount of his rateable share of 
the liability,^ or except to the action on the ground of 
misjoinder of parties. This is the case even when the 
original liability was in its nature indivisible ; for, at all 
events, the liability to make compensation in damages 
is divisible, and admits of apportionment amongst the 
persons severally liable for non-performance. 

The same principle, it seems, applies also in the modem 
law in case of plurality of creditors, so that in the absence Plurality 
of express agreement to the contrary each is entitled, ^^7*"^' 
and may sue, only in respect of his rateable share of 
the performance which forms the subject-matter of the 
contract.^ 

In the excepted cases the rules of the older Civil Law Excepted 
apply. In case of plurality of creditors each one may ^^^'^^' 
sue for the whole debt, but payment or its equivalent, or 
novation, made to one promisee, discharges the whole 

^ Gr. 3. 3. 8-11 ; Van Leeuwen, 4. 4. 1 and Sohorer, ad loo. ; Voet, 
45. 2. 4 and Compendium, 45. 2. 5. According to the statement in the 
text, a co-debtor who has bound himself in solidum and whose co-debtor 
is absent or insolvent may still claim the benefit of division, unless he 
has expressly renounced it. This, according to a jurist in the Bellum 
Juridicum (Gas. 24), is known to every one who has ' licked the spoon ' 
of jurisprudence. But de Haas ad Van Leeuwen, Gens. For. 1. 4. 17. 1, 
and Van der Linden (Translation of Pothier, Obligations, vol. i, sec. 270, 
and Handbook (1. 14. 7) ) say that a co-debtor who has bound himself 
in solidum cannot claim the benefit of inventory. De Haas cites 
Grotius, 3. 3. 29 [ad fin.): 'Diehaer verbinden een voor al, ofte elok 
sonderling, worden verstaen de voorsz. rechten af te staan.' But Grotius 
is here speaking of sureties. Van der Keessel (Th. 494) seems to agree 
in effect with Van der Linden that co-debtors who bind themselves 
'singuli pro omnibus tanquam rei principales' are deemed to have 
renounced the benefit of division. Mr. G. T. Morice says (English and 
Roman-Dutch Law (2nd. ed.), p. 89) : ' It is probable that the latter 
view (viz. that persons who have expressly bound themselves in 
solidum or each for the whole amount cannot claim the benefit of 
division) will be adopted in South Africa.' 

2 De Pass v. Colonial Government (1886) 4 S. C. 383. 



246 



THE LAW OF OBLIGATIONS 



Contribu- 
tion 
between 
co- 
creditors 
and co- 
debtors. 



liability/ for 'in utraque obligatione una res verfcitur; 
et vel alter debitum accipiendo vel alter solvendo omnium 
peremit obligationem et onmes liberat '? But an agree- 
ment not to sue one of several debtors, being merely 
personal in its incidence, has no effect upon the liability 
of the others.* The debtor, on his side, imtil, but not 
after, action brought, may pay any co-creditor that he 
pleases. In case of plurality of debtors the creditor may 
proceed against any one of them for the whole or any part 
of the debt ; and his election to sue one does not preclude 
him from going against another, since it is not his election, 
but only payment or its equivalent, or novation, which 
discharges the liability of the other co-contractors. If 
one co-debtor has voluntarily paid part, but not the whole, 
of the debt, the creditor is not precluded from suing for 
the balance, unless he has expressly or tacitly agreed to 
that effect. The case is different if the creditor has taken 
proceedings against one co-debtor in respect of his rateable 
share of the debt ; for by so doing he precludes himself 
from taking fresh proceedings for the balance. However, 
as explained above, these rules of the jus civile are generally 
inapplicable to the modem law. 

If one co-creditor recovers the whole debt, or, if one co- 
debtor pays the whole debt, the other co-creditors in the 
first case may sue, and the other co-debtors in the other case 
may be sued, in respect of their rateable share of the bene- 
fitsorloss. Such is the modem law.* In the Roman Law no 
action for contribution lay except in the case of partners.^ 

1 Voet, 45. 2. 4. ^ Inst. 3. 16. 1. 

^ Gr. 3. 3. 8. If the creditor becomes heir to one of two co-debtors, 
the other co-debtor remains liable in solidum, unless the co-debtors are 
partners, in which case the remaining co-debtor is only liable for half 
the debt. Voet, 45. 2. 5. A debt may be extinguished by prescription 
against all co-creditors and in favour of all co-debtors ; but a demand in 
judicio against one keeps the debt alive against all. Voet, 45. 2. 6. 

* Gr. 3. 3. 8 ; Voet (45. 2. 7) says : Quae cum ita sint, non mirum quod 
nunc vulgo a pragmaticis tradatur, ex aequitate uni solidum solventi 
adversus reliquos regressum dari opportere aliquando in soUdum, 
aliquando pro virili, prout aut nihil aut aliquid ad solventem per- 
venerit ex eo cujus intuitu correi faoti sunt, etiam sine cessione actionis. 
He does not say that a co-creditor who has recovered the whole is 
obliged to share it with the other co-creditors (not being partners) 
but presumably he is so obliged jiire hodiemo. 
= Voet, ibid. Cf. Dig. 35. 2. 62 pr. 



SPECIAL CONTRACTS 247 

CHAPTER VI 
SPECIAL CONTRACTS 

To undertake a detailed statement of the law applicable in 
to the various kinds of contracts into which men may 5°?^?°' 
enter, lies outside the scope of an elementary treatise. Law all 
As observed above, in Roman-Dutch Law all contracts ^°^*™'=*^ 
are consensual. The differences of the Roman Law between consen- 
contracts re verbis litteris and consensu have in a great 
measure lost their significance ; and the ancient distinc- 
tion between contracts and pacts is equally a thing of the 
past. It foUows that the principles which have been 
stated with regard to contracts in general apply to every 
kind of contract, except so far as the parties have chosen 
to depart from them, or the law attaches special rules to 
contracts of the class in question. The term ' special 
contract ' is in fact rather misleading. All contracts 
partake of the same nature ; and all take a special colour 
from the subject-matter with which they deal. If we why 
select some contracts for special treatment it is only ^°™^ ^^ 
because they concern certain relations of mankind which are 
are of such frequent occurrence that every reasonably f^/" ^ 
equipped lawyer must be prepared to deal with them. A special 
yoimg lawyer may be excused if he knows little of the law 
relating to marine assurance or to apprenticeship in the 
cloth-trade, but he will be expected to have some acquaint- 
ance with such common transactions as sale, hire, deposit, 
mandate, and suretyship. 

In this chapter we shall describe in briefest out- Enumer- 
line some of these contracts of frequent occurrence. We 1^°^^^ 
shall speak of : (1) Gift or Donation ; (2) Sale ; (3) Ex- contracts. 
change ; (4) Hire ; (5) Mandate or Agency ; (6) Partnership ; 
(7) Loan for Consumption ; (8) Loan for use ; (9) Deposit ; 
(10) Pledge ; (11) Suretyship or Guarantee ; (12) Carriage 
by water and by land. 



248 THE LAW OF OBLIGATIONS 

1. Dona- 1. Donation or Gift^ is regarded in Roman-Dutch Law 
Gift.""^ as a contract. A distinction is drawn, as in the case of 
sale, between the contract, which binds the parties, and 
the handing over, which passes the property.^ Any 
promise to give is legally enforceable, provided that it is 
made with a serious and deliberate mind.* The capacity 
of parties, generally, is the same as in other contracts. 
Thus minors cannot make a gift, nor can guardians in 
their name.* According to Grotius, parents cannot make 
gifts to their unemancipated children,* but this proposition 
scarcely holds good at the present day. In the Roman 
Law, gifts between husband and wife were invalid ® until 
confirmed by death.^ This rule was received in the 

^ (Donatio — Schencking) Gr. 3. 2. 1 ; Van Leeuwen, lib. iv, cap. xxx ; 
Voet, 39. 5. 1 ; V. d. L. 1. 15. 1. 

2 Gr. 3. 2. 14. 

^ Grotius says (3. 2. 11) that a gift inter vivos of all one's goods — 
present as well as future — is bad ' om dat hat maecken van de uiterste 
wille daer door werd belet.' So also Van Leeuwen, 4. 30. 6. Van der 
Keessel says {Th. 487): Jure Romano quidem ex saniori doctrina 
omnium bonorum donatio non fuit prohibita : sed cum contraria 
sententia olim juri civili magis consentanea baberetur, eadem a plerisque 
in foro recepta et nostris quoque probata videtur. 

* Gr. 3. 2. 7. 

* Dig. 41. 6. 1. 1 ; Gr. 3. 2. 8 ; V. d. L. vhi sup. Voet says {Gtm- 
pendium, 39. 5. 7) : Moribus. Donatio inter patrem et filimn famUias 
omnino consistit. But in his Commentary on the Pandects (39. 5. 6) he 
declares such gifts to be invalid, citing inter alios Van Leeuwen, Gens. 
For. 1. 4. 12. 8 ; who however endorses Voet's earlier, not his later view. 
Van der Keessel {Th. 485) agrees, subject to acceptance by a notary on 
behalf of the minor. In South Africa a parent, being solvent, may 
make a valid gift to a child, who (semble) may accept on his own behalf. ' 
See 1 Maasdorp, p. 234, and cases there cited. The Ceylon Courts have 
upheld the practice in that Colony of parents to donate to their minor 
children. Grandparents and parents, when not also the donors, may 
accept for them. Fernando v. Weerakoon (1903) 6 N. L. E. 212. 

^ Dig. 24. 1. 1 (Ulpian) : Moribus apud nos receptum est ne inter 
virum et uxorem donationes valerent. In Ceylon, by The Matrimonial 
Rights and Inheritance Ordinance (No. 15 of) 1876, sees. 13 and 11, 
spouses may make gifts to one another, but not so as to prejudice the 
creditors of the donor. The Roman-Dutch writers seem to have 
experienced great difficulty in deciding whether a gift to a concubine 
was valid. See de Haas ad Cens. For. 1. 3. 4. 41, who answers the 
question affirmatively. Contra, Decisien en Sesolutien van den Hove van 
Holland ('s Hage, 1751) Gas. 29 : Of eene donatio dooriemand aan zijne 
Bijzit toegezegd naar Reohten bestaanbaar is, en of daar uit door 
haar tot praestatie kan geageerd worden. Bij 't Hof is verstaan 
van neen. ' Dig. 24. 1. 32. 2 ; Girard, p. 945. 



SPECIAL CONTRACTS 249 

Roman-Dutch Law/ which also, as we have seen above, 
rendered wholly null and void gifts, whether ante- or post- 
nuptial, made by a minor, who contracted marriage with- 
out the necessary consents, in favour of the other spouse 
(not beiag a minor). ^ 

The constitution of Justinian,* which, subject to some 
exceptions, required registration of gifts exceeding 500 
aurei in value, was admitted into the Roman-Dutch Law,* 
and has been recognized as in force in South Africa,^ the 
aureus being taken as equivalent to the pound sterling. 
Gifts in excess of the permitted value are void only to 
the extent of the excess.^ Reciprocal and remuneratory 
donations do not fall within the rule, provided in the 
latter case that the gift does not exceed the value of the 
ser^'ice rendered by more than £500.' The rule applies 
if several gifts are made by the same person at the same 
time to different persons.® 

A gift being gratuitous there is no implied guarantee 
against eviction or against latent defects.® If the pro- 
perty given does not belong to the giver the gift is void.^° 

Gifts are as a rule irrevocable.^^ Therefore, if property in what 
has been handed over by the donor, it cannot be recovered ^y^^J**^ 
back ; and if the donor fails to hand over the property, revoked. 
he can be sued by the donee for breach of contract. But 
exceptions are admitted in both cases. Property which 
has passed may be recovered : (a) on the ground of gross 
ingratitude ; ^^ and (b) if the donee fails to make good 

1 Gr. 3. 2. 9 ; Van Leeuwen, 4. 24. 14 ; V. d. K. Th. 486. 

2 Gr. 3. 2. 10. 

3 Cod. 8. 53 (64). 36. 3 (a. b. 531) ; Inst. 2. 7. 2. 

1 Van Leeuwen, 4. 30. 3 ; Voet, 39. 5. 15. But Grotius (3. 2. 15) says: 
waer van ick in onzes lands wetten niet en vinde, missoMen, om dat 
de mildheid hier niet te groot en is geweest. Van der Keessel {Th. 489) 
says that a solemn cession of immovable property in judicio or in the 
case of movables a declaration before notary and witnesses has the 
same effect as registration. Van der Linden (as usual) follows Grotius. 

= 3 Maasdorp, p. 96. 

« Cod. 8. 53 (54). 34. 1 ; Van Leeuwen, 4. 30. 5. 

' Voet, 39. 5. 17. * Voet, 39. 5. 16. " V. d. L. vhi sup. 

i» Gr. 3. 2. 5. " Gr. 3. 2. 16. 

^^ What amounts to ingratitude is specified in Cod. 8. 55 (56). 10 
(a. d. 530). See Gr. 3. 2. 17 ; Van Leeuwen, 4. 30. 7 ; Voet, 39. 5. 22 ; 



250 THE LAW OF OBLIGATIONS 

a condition attached to the gift {donatio svJ) modo)} If 
the property has not passed, the donor may defend an 
action on the ground of want of means {beneficium com- 
pefentiae) ; and the claims of creditors must be preferred 
to the claim of the donee.^ 

In the later Roman Law the rules of the querela in- 
officiosi testamenti were, with modifications, applied also 
to gifts {querela inofficiosae donationis)? This practice 
was followed in the Dutch Law,* and may be supposed to 
be in force to-day in British Guiana, which alone of the 
Roman-Dutch Colonies still retains the legitima portio 
as a living institution. 

Another ground of revocation was the subsequent birth 
of legitimate children to the donor ; which, however, was 
limited in the Roman Law to the case of gifts made by 
patrons to freedmen,^ and was available only between the 
original parties to the contract, so that the right of revo- 
cation was neither actively nor passively transmissible. 
In the Roman-Dutch Law, according to the prevailing 
opinion, the privilege was extended to all donors,® and was 
available to the donor's heir.' 

The rules of law prohibiting gifts and other alienations 

in fraud of creditors belong to the topic of Insolvency and, 

like gifts mortis causa,^ lie outside the scope of this chapter. 

V. d. L. Mhi sup. This ground of avoidance does not apply to 
remuneratory gifts. Voet, 39. 5. 25. Por Ceylon see D. C. Colombo 
54,687 (1871) Vanderstraaten, p. 144, and Sansom y. Foenander (1872) 
Ramanathan, 1872-6, p. 32. i Cod. 4. 6. 8 ; Girard, p. 946. 

^ Dig. 39. 6. 12 : Qui ex donatione se obligavit, ex resoripto divi Pii 
in quantum facere potest convenitur. Sed enim id quod creditoribus 
debetur erit detrahendum ; haeo vero, de quibus ex eadem causa quis 
obstrictus est, non debebit detrahere. Voet, 35. 9. 19. 

3 Dig. lib. xxxi, lex 87. 3 ; Cod. 3. 29. 9 ; Girard, p. 868. 

« Gr. 3. 2. 19 ; Voet, 39. 5. 36 ; V. d. K. Th. 491. Grotius says 
that if the gift is made in fraud of the children it is wholly void, but 
in the absence of fraud is only reduced by the amount necessary to 
make up the legitim. But Voet (39. 6. 37) says that the last result 
follows in either case. This seems to be correct. See Girard, p. 946. 

= Cod. 8. 55 (56). 8 ; Girard, ubi sup. 

« Gr. 3. 2. 18 ; Voet, 39. 5. 26 {ad fin.). 

' Van der Keessel {Th. 490) maintains the opposite opinion. 

8 For which see Van der Keessel Th. 492-3, and Th. 100; and 
(Ceylon) Parasatty Ammah v. Setvpulle (1872) 3 N. L. R. 271 ; Kan- 
nappen v. Mylipody (1872) 3 N. L. R. 274. . 



SPECIAL CONTRACTS 251 

2. Sale.i The Roman-Dutch Law on this subject is 2. Sale. 
fundamentally Roman Law varied at some points by 
Dutch custom. In the South African Colonies, however, 
the law has been largely moulded by English precedents. 
In Ceylon, Ordinance No. 11 of 1896, follows the English 
Sale of Goods Act, 1893. The same may be said of the 
very recent enactment of the Legislature of British Guiana, 
Ordinance No. 26 of 1913. 

The contract of sale is complete so soon as the parties When the 

J , ,1 . o . ,, . . Contract 

are agreed as to the price ; •^ i. e. so soon as the price is of gaie is 
certain or readily ascertainable. In English Law, when complete, 
no price is fixed, there is a presumption that the parties 
intended to contract for a reasonable price. In the 
Roman-Dutch Law such a contract would not, perhaps, 
satisfy the strict requirements of the definition of sale.^ 
But this is a question of words. The Courts could 
scarcely fail to give effect to it as an innominate contract 
or actionable pact. 

The property in things sold passes, as a rule, upon When the 
delivery. But : (a) if the sale is made subject to a sus- pa°^es^ ^ 



pensive condition the property does not pass until the under a 
condition is satisfied ; and (b) where credit has not been of Sale. 
given the property does not pass until payment of the 
purchase price.* Subject to some exceptions the goods 
are at the purchaser's risk from the moment when the 
contract is concluded.® 

^ Emptio Venditio — Koop ende Verkooping. Gr. lib. iii, cap. xiv ; 
Van Leeuwen, lib. iv, cap. xvii ; Voet, lib. xviii, tit. 1 ; V. d. L. 
1. 15. 8. 

' Inst. 3. 23 pr. : Emptio et venditio oontrahitur simul atque de 
pretio convenerit. Cf. Van Leeuwen, 4. 17. 1. The parties must also 
be at one as to the res. 

" Gr. 3. 14. 1 and 23. 

* Inst. 2. 1. 41 ; Gr. 2. 5. 14; Voet, 19. 1. 11. Consequently an 
unpaid vendor may follow up and reclaim the property in the hands 
of a third person (Van Leeuwen, 2. 7. 3 ; 4. 17. 3 ; Daniels v. Cooper 
(1880) 1 E. D. C. 174), even though the sale was not expressed to be 
for cash (V. d. K. Th. 203), unless a sale in open market (op een 
openbare markt) has intervened (Van Leeuwen, 2. 7. 3), in which case 
the owner caimot recover his property unless he indemnifies the second 
purchaser (ibid.). But see next page, n. 4. 

5 Inst. 3. 23. 3 ; Gr. 3. 14. 34 ; V. d. K. Th. 639. The right to the 



252 THE LAW OF OBLIGATIONS 

It is not an implied condition in the contract of sale 
that a vendor should make a good title to the thing sold.^ 
A man can contract to sell res aUena no less than res sua. 
But he is bound to give vacua possessio to the purchaser. 
If he fails to do so, or if after dehvery the purchaser is 
evicted by superior title, the vendor is liable in damages.^ 

Except in the case of negotiable instruments, a vendor 
cannot give to an innocent purchaser a better title than 
his own. It seems that, by the law of Holland, a pur- 
chaser who had no notice of his vendor's defect of title 
might sometimes retain the goods against the true owner, 
unless the latter paid him the price which he had given for 
them.^ But it is doubtful whether any such right exists 
in the modern law.* 

fruits and other accessories accompanies the risk. Gr. ibid, and 
3. 15. 6 ; Van Leeuwen, 4. 17. 2. 

^ It is otherwise as regards land in British Guiana. ' He who sells 
as owner guarantees, if he does not stipulate to the contrary, that he 
can and will give the purchaser a valid transferable title.' Black v. 
Hand-in- Hand Insurance Go. (1892) 2 Brit. Gui. L. R. (N. S.) 53. 

^ In case of eviction the purchaser has the option to sue for damages 
or for the value of the thing sold, as on the day of sale. Gr. 3. 15. 4. 
The indemnity in case of eviction cannot be claimed, in the absence of 
agreement, by one who knowingly purchases a res aliena. V. d. K. 
Th. 641. It the vendor is in mora the purchaser may claim either 
the thing as it then is, together with profits and with compensation for 
depreciation, or alternatively damages for non-delivery. Gr. 3. 15. 6. 
There is no warranty against eviction if the vendor merely sold a thing 
or right for what it was worth (zoo goed ende quaet als 't is, zonder 
daer voor in te staen, 't welck men noemt met de voet stoten). Gr. 3. 
14. 12. Even in this case the vendor must restore the price. Van 
Leeuwen, 4. 18. 2. 

3 Gr. 2. 3. 6 ; Van Leeuwen, 2. 7. 3-4 ; Cens. For. 1. 4. 19. 20 ; 
Voet, 6. 1.7; V. d. K. T/j. 184. The holder's right to retain against the 
owner only arose in case he could not recover from the actual vendor. 

* See Nathan, Common Law of South Africa, vol. ii, p. 701 ; 2 Maas- 
dorp, p. 62 ; Morice, English and Boman-Dutch Law, p. 127 ; Van dear 
Merwe v. Wehh (1883) 3 E. D. C. 97 ; cmdra. Relief v. Hamerslach 
(1884) 1 S. A. B. 171 ; the doubts are : (1) whether the rule at any 
time formed part of the common law of Holland ; (2) whether, if 
it did, it has not in the Colonies been abrogated by disuse. Grotius 
mentions as an exception to the general rule a bona fide purchase in 
a free market (uitghenomen wanneer iemand iet ter goede trouwe 
heeft ghekocht op een vrije mart). Van Leeuwen (2. 7. 3) speaks of 
sale in a public market (op een openbare markt, ; in publico emporio 
Cens. For. 1. 4. 19. 20). In the last-cited passage he makes the rule 
of merely local application. See Kotze's learned note (Van Leeuwen, 
vol. ii, p. 134). 



SPECIAL CONTRACTS 253 

The vendor is understood to warrant the purchaser 
against latent defects in the goods sold.-^ Where the latent 
defect is of such a character that, had he known it, the 
purchaser would not have entered into the contract, he 
may rescind the sale and recover the purchase-money by 
the actio redhibitoria. If the defect would not have had 
this consequence, but would have reduced the purchase 
price, the purchaser may recover the excess in the actio 
quanti minoris.^ 

In HoUand, by general custom, the Count had a right 
of pre-emption over feuds ; and, by local custom, relatives 
and others had a similar right over other immovable 
property. This right was called naasting or jiis retractus? 
It has no equivalent in the modern law, but a right of 
pre-emption may of course be the subject of express 
stipulation.* 

3. Exchange. The rules applicable to the contract of 3. Ex- 
sale are mutatis mutandis apphcable to the contract of " ^'^^^' 
exchange. In the Roman Law, exchange was a real con- 
tract, i. e. no obligation arose until one party had dehvered 
property to the other. In the modern law, an agreement 

to exchange is actionable per se. In the Roman Law the 
property exchanged must be res sua, not res aliena, and in 
this respect exchange differed from sale.® In the modern 
law, there seems no reason why, if you agree to give me 
the horse of Titius in exchange for my ox, you should not 
be bound by your agreement. 

4. Hire.* In the Roman Law, the contract locatio 4. Hire. 

1 In the absence of contrary agreement (Van Leeuwen, 4. 18. 7), 
which would be another case of 'met den voet stooten'. 

2 Gr. 3. 15. 7 ; Van Leeuwen, 4. 18. 4 ; V. d. K. Th. 642. If the 
vendor knows of a defect and does not reveal it, he is liable to the 
purchaser for all damages arising from the defect ; and if he has 
deceived the purchaser by representing the value of the property to 
be higher than was actually the case, the purchaser may bring an 
action for the return of the excess (Gr. loo. cit.). For laesio enormis see 
above, p. 203. 

3 Gr. lib. iii, cap. xvi ; Van Leeuwen, lib. iv, cap. xix ; Voet, 
18. 3. 9 ff. ; V. d. K. Th. 643 ff. 

« 3 Maasdorp, p. 140. ^ Voet, 19. 4. 2. 

" Locatio conductio — Huir ende Verhuiring. Gr. lib. iii, cap. xix ; 



254 THE LAW OF OBLIGATIONS 

conductio has a very wide extension. It covers not only 
the hire of things (locatio conductio rei), but also the hire 
of services (locatio conductio operarum). Under the first 
head are included the hire of movables, such as a horse 
or carriage, and the hire of land, or what is nowadays 
commonly known as a lease. The term hire of services 
covers contracts between master and servant, and all 
other contracts of employment. In the modern law, it 
includes also contracts for professional services, which 
having originally been in theory, if not in fact, honorary 
in character, were referred by the Roman Law to the head 
not of hire, but of mandate.^ 

In the Roman-Dutch Law the rules relating to the hire 
of movables and the hire of services correspond closely 
with the Roman Law, and need not detain us. 
Hire of The contract of hire of land calls for separate treat- 

land: ment. The rules which we shall state with regard to it 
are in many respects apphcable to the hire of movables 
as well. 
inrela- III ^^ earUer chapter we have considered the hire of 

th°°i*° f ^^^^ ^^ relation to the law of property, and have inquired 
property; how far a lease creates a right in rem.^ 
as regards As regards form, we have seen that sometimes, to pro- 
form, duce this result, the lease must be effected by a judicial 
act or by a notarial deed duly registered, and that the law 
of some of the Colonies requires that leases for shorter 
periods should be evidenced by writing.* 
Land- The landlord's lien has been mentioned in the chapter 

lord'slien. on Hypothec* 

Hire of In its more purely contractual aspect, the contract 

relation °^ ^"^^ °^ IsinA {lease) involves the consideration of the 
to the rights and duties which, in the absence of contrary agree- 
oontraot. ment, the law confers and imposes upon lessor and lessee ; 
the rights of the one being the counterpart of the duties 
of the other. 

Van Leeuwen, lib. iv, capp. xxi-xxii ; Voet, lib. xix, tit. 2 ; V. d. L. 
1. 15. 11. 1 Girard, p. 571. 

2 Supra, pp. 141 ff. ^ Supra, pp. 142-3. * Supra, p. 167. 



SPECIAL CONTRACTS 255 

The duties of the lessor^ are : (1) to deUver the subject Duties of 
of the lease to the lessee ;2 (2) after dehvery to abstain 'l^e lessor. 
from interfering with the lessee's occupation and enjoy- 
ment, and to guarantee him against justifiable interference 
by others ;^ (3) to keep the subject of the lease (if it 
admits of it) in such a state of repair that it may be con- 
veniently used by the lessee ; * (4) to see that the subject 
of the lease is free from such defects as will prevent its 
being properly and beneficially used for the purpose for 
which it was leased ; ^ (5) to pay aU taxes imposed upon 
the property.^ 

The duties of the lessee' are: (1) to pay the rent Duties of 
agreed in terms of the contract ; * (2) to take proper care *'^^ ^^^^<^^- 
of the property leased — ^thus, not to injure or destroy it ; ^ 
(3) not to use it for any other purpose than that for which 
it was leased ; ^^ (4) to retain the leased property until the 
lease expires ; -"^^ (5) to restore it to the lessor in a proper 
state of repair on the expiry of the lease.-^^ 

The lessee may in certain cases claim a reduction or When the 
remission of rent. These are : (1) if the lessor fails to ^^^^^ 
deliver to the lessee the whole of the property agreed to claim 
be leased ; ^^ (2) if the lessee is evicted ^* or if his use or of rent. " 

1 3 Maasdorp, p. 203. ^ y^gt, 19. 2. 26 ; V. d. L. 1. 15. 12. 

» V. d. L. ibid. 

* Gr. 3. 19. 12 ; Voet, 19. 2. 14 ; V. d. L. ubi sup. But there is 
no duty to rebuild in case of destruction, e. g. by fire. Windscheid, vol. ii, 
p. 677, § 400 (in notis). 

^ If the lessor neither knew nor ought to have known of the defect 
he will not be liable in damages, but the lessee may claim remission 
of rent. Voet, 19. 2. 14. In other cases he is liable in damages. Gr. 3. 
19. 12 ; 3 Maasdorp, p. 209. 

= Gr. 3. 19. 12; Van Leeuwen, 4. 21. 5; 3 Maasdorp, p. 210. 

' 3 Maasdorp, p. 210. 

^ Voet, 19. 2. 22. Strictly speaking, where no rent is agreed there 
is no contract of letting and hiring, but the owner of the property is 
entitled to compensation for ' use and occupation '. Murphy v. London 
& S. A. Exploration Co. (1887) 5 S. C. 259 ; Pereira, p. 667. 

» Gr. 3. 19. 11 ; Van Leeuwen, 4. 21. 4 ; Voet, 19. 2. 29. He may 
not (e. g.) convert pasture into arable land (V. d. K. Th. 680 (mis- 
translated by Lorenz)). 
" Inst. 3. 24. 5 ; V. d. L. ubi sup. 

11 Gr. 3. 19. 11 (ad fin.). 

12 Voet, 19. 2. 32. For measure of damages see Voet, 19. 2. 22. 

13 Voet, 19. 2. 26. " Voet, ibid. 



256 THE LAW OF OBLIGATIONS 

enjoyment is interfered with, either by the lessor or by 
some third person in the exercise of a legal right ; ^ (3) if 
the lessor fails to keep in repair ; ^ (4) if the lessor fails to 
see that the thing leased is free from defects ; ^ (5) if the 
property leased has been destroyed completely * or to 
such an extent as to be useless for the purpose for which 
it was let ; (6) if the lessee is disturbed in his possession 
by hostile attack or other just cause of fear ; ^ (7) if there 
has been an extraordinary failure of crops, due to tempest 
or the like, or to interference with cultivation, by fire, 
flood, or foe.® 

Most of these grounds for remission rest upon the broad 
principle that the duties of lessee and lessor are reciprocal. 
If the latter fails in his duty the former need not pay his 
rent. But for the last two grounds of remission the lessor 
State of is no more to blame than the lessee. Accordingly in the 
the c^e" ^^P^ Province the General Law Amendment Act No. 8 of 
Province. 1879 provides (sec. 7) that the rent accruing under a lease 
shall not be incapable of being recovered on the ground 
that the property leased has through inundation, tempest, 
or such unavoidable misfortune produced nothing (or on 
the ground that the lessor himself has absolute need of 
the land).' By judicial interpretation the phrase ' un- 
avoidable misfortune ' has been extended to acts of war.^ 

^ Voet (19. 2. 23) gives as an instance the case of the lessor 
selling the property before the lease has expired. But this would only 
hold at the present day in cases in which koop gaat voor huur (V. d. L. 
1. 15. 12). Another case is — si non commodus sit praestitus rei usus — 
e. g. if a lessee's lights are wholly obscured by a neighbour ; but slight 
interference does not entitle the lessee to relief. Dig. 19. 2. 27 pr. ; Voet, 
19. 2. 18. It may be necessary for the lessor to deprive the lessee of 
possession for the purpose of effecting repairs. The lessee while so 
out of possession pays no rent. Voet, 19. 2. 16. See below, p. 260, n. 7. 

2 Gr. 3. 19. 12 ; Voet, 19. 2. 23. 

^ Dig. 19. 2. 19. 1 ; Voet, 19. 2. 14. 

* Voet, ubi sup. 

^ Such as ghosts — spectra in aedibus dominantia ; or if the house 
becomes ruinous or dangerous. Voet, libi sup, 

« Gr. 3. 19. 12 ; Van Leeuwen, 4. 40. 7 ; Voet, 19. 2. 24-5. May 
the lessor require the lessee to set off extraordinary gain in one year 
against extraordinary loss in another (sec. 24) ? What is extra- 
ordinary loss (sec. 25) ? 

' See below, p. 260, n. 9. » 3 Maasdorp, p. 213. 



SPECIAL C0:STRACTS 257 

A lessee is entitled to compensation for fixtures annexed Compen- 
with the lessor's consent, and for necessary improvements fixtures?'^ 
made even without consent, and also for ploughing, 
sowing, and seed corn.^ 

In the case of fixtures, the right to compensation is 
secured by a legal hypothec upon the land.^ Fixtures 
may be disannexed and removed before the expiry of the 

^ In the Civil Law a lessee was entitled to compensation for necessary 
or useful improvements. In other cases he had merely the right to 
take away what he had annexed (unless the lessor were willing to pay 
compensation ?) Dig. 19. 2. 65. 1 and lex 19. 4 ; Windscheid, vol. ii, 
p. 679, § 400. For Holland the law is laid down in a Placaet van 
de Staten van Hollandt tegens de Pachters ende Bruyckers van de 
Landen, September 26, 1658 (2 G. P. B. 2515), re-enacted verbatim 
by Plaoaat of February 24, 1696, Art. 10, which allows the outgoing 
tenant after vacating the land compensation for (1) fixtures {Getimmer) 
annexed to the land with the owner's consent, (2) ploughing, sowing, 
and seed com. 

Art. 11 defines the compensation for fixtures as the value of the 
bare materials at the time of the assessment just as if they had then 
been removed from the land. Payment is secured by a tacit hypothec. 
Art. 12 provides that fixtures annexed without consent must be 
removed before the expiry of the term, otherwise to become the pro- 
perty of the landlord. This Plaoaat has been held to be in force in 
Cape Colony and to apply to urban as well as to rustic tenements 
(De Beers Consolidated Mines v. London cfc S. A. Exploration Co. (1893) 
10. S. C. 369, afiirmed in appeal to P. C. (1896) 12 S. C. 107). In 
Brit. Gui. the Placaat was applied in Liquidator of the B. O. Ice Co. v. 
Birch (1909) Brit. Qui. Off. Oaz., vol. xxx, p. 3. It may be noted here 
that by the Roman-Dutch Law the bona fide (V. d. K. Th. 212) but 
not the mala fide possessor (V. d. K. Th. 214) is entitled to com- 
pensation for ■ useful ' expenses. The mala fide possessor is entitled 
to compensation for necessary expenses only (Gr. 2. 10. 8 ad fin.). For 
Ceylon Law see General Ceylon Tea Estates v. Pidle (1906) 9 N. L. R. 98, 
dissenting from Tikiri Banda v. Gamagedera Banda (1879) 3 S. C. C. 
31. The Placaat is silent on the subject of necessary improvements, 
i.e. improvements necessary for the preservation or protection of the 
property leased. ' But there is ample authority for holding that 
compensation must be paid for such improvements made by a lessee 
in the same way as if such lessee had acted as negotiorum gestor' 
{De Beers Consolidated Mines t. S. A. Exploration Co. per de Villiers C. J. 
at p. 369). It seems that in this case compensation is due whether 
the improvements were made with or without the landlord's consent. 
On the other hand, there is no right of removal (ibid.). 

As to the lessee's right of removal in general, the law seems to be 
that with the above exception all other improvements, whether annexed 
with consent or without consent, may be disannexed and removed 
before, but not after, the expiration of the lease (De Beers case, uhi sup. 
at p. 372). 

" Which, however, does not give a right of retention. V. d. K. 
Th. 213. 

171.3 S 



258 THE LAW OF OBLIGATIONS 

lease.^ If this has not been done, they vest in the owner 
of the land. 
Compen- The lessee is not entitled to compensation for trees 
tre^" ^°^ planted by him, unless he can prove that he planted them 
planted at the lessor's instance (last ende bevel), and even in that 
case he is only entitled to recover the initial cost of plant- 
ing.^ Whether the lessee may remove such trees during 
the continuance of the lease is uncertain.* 
Assign- The interests of the lessor and lessee respectively are 
suWease. assignable by act of party.* The effect of assignment is 
to substitute the assignee {cessionary) in the place of the 
original lessor or lessee, who thereupon ceases to be bound 
or entitled under the contract.^ A sub-lease has no such 

1 Dig. 19. 2. 19. 4 ; Voet, 19. 2. 14 ; V. d. K. Th. 213. See next note. 

'' Plaoaat of September 26, 1658, Art. 13 ; Oosthuizen v. Estate of 
Oosthuizen [1903] T. S. at pp. 692-3. The question of compensation 
for improvements goes beyond the case of the lessee and arises as 
regards all possessors whether bona fide or mala fide. Grotius 
(2. 10. 8) lays down the principle that a bona fide possessor is entitled 
to compensation for useful and of course for necessary improvements 
(and even for voluptuary improvements unless the land-owner prefers 
to allow their removal) ; but a mala fide possessor only for necessary 
expenses. This is the view of Van der Keessel also (Th. 212-4).' 
Other authorities, however — as Groenewegen {de leg. abr. ad Inst. 2. 1. 
30) ; Van Leeuwen (Cens. For. 1. 2. 11. 7 and 8) ; Schorer and Voet 
(6. 1. 36 {ad fin.) ) hold that in the modern law the mala fide possessor 
no less than the bona fide possessor is entitled to compensation for 
impensae utiles. The former view was declared by the Supreme 
Court of Ceylon to be in conformity with the usage of that Colony 
(General Ceylon Tea Estates Co. v. Pvlle (1906) 9 N. L. R. 98, dis- 
senting from the dicta of Berwick J. in Tikiri Banda v. Gamagedera 
Banda (1879) 3. S. C. C. 31). The more liberal view has been asserted 
at the Cape (Bdlingham v. Bloometje (1874) Buch. 36 ; De Beers 
case, vhi sup. at p. 257, n. 1). The right to compensation, when it exists, 
may in the modern law be enforced not only by exception, as in the 
Roman Law, but also by action. Voet, 5. 3. 23 (ad fin.). Groen. 
de leg. abr. ubi sup. 

^ 3 Maasdorp, p. 229. De Beers Consolidated Mines v. The London 
dh 8. A. Exploration Co. (1893) 10 S. C. 369 at pp. 369, 373. But see 
Houghton Estate v. McHattie tfc Barrat (1894) 1 Off. Rep. 92 on p. 102. 
By Art. 14 of the Plaoaat, fruit trees and timber trees (vruchtbare 
Boomen ofte opgaende Hout) are not to be lopped or cut down without 
the landlord's written consent. Van der Keessel says in general terms 
(Th. 215) : Plantatae in fundo conduoto arboressolo cedunt, nee earum 
pretium dominus qui plantari non jussit restituit. 

* If the lessor assigns, the lessee must pay the rent to the assignee 
even though he may have paid the lessor in advance. Voet, 19. 2. 19. 

' Reeders <fc Wepener v. Jo'burg Town Council [1907] T. S. at p. 654. 



SPECIAL CONTRACTS 259 

effect. It is a contract whereby the original lessee lets 
the property to a third party for the whole or for a part 
of the unexpired term of the original lease. As between 
lessee and sub-lessee there is an assignment of the lessee's 
rights of use and enjoyment ; but the lessee does not 
cease to be liable to the lessor, nor does the sub-lessee 
become hable to or acquire any rights against the lessor. 
As between lessor and sub-lessee there is no privity of 
contract.-^ The right to assign or sublet may be restricted Is the 
by covenant, but in the absence of such agreement the t^e lessor 
lessee of a praedium urbanum is free to assign or sublet necessary 
without the consent of the lessor. Whether the lessee assign- 
of a praedium rusticum may do the same has long been ^^^^ or 
a vexed question. The Courts of Cape Colony have held 
consent to be necessary.^ The Courts of the Transvaal 
have held it to be unnecessary.* 

1 Voet, 19. 2. 21 ; Green v. Griffiths (1886) 4 S. C. 351. 

^ De Tries v. Alexander (1880) Foord 43 ; Friedlander v. Croxford 
(1867) 5 S. 395. The law is the same (semble) in 0. F. S. (Cvllinan v. 
PisUyrius [1903] 0. R. C. 33) ; and in Brit. Gui. Trotman v. de Souza 
(1906) Off. Gaz. vol. xxiv, p. 412. 

» Eckhardt v. Nolte (1885) 2 S. A. R. 48. Grotius (3. 19. 10) says 
in general terms that a hirer may let the subject of the hire to another 
person in the absence of agreement to the contrary, but in the case 
of houses, he adds, this is usually forbidden by the keuren of the 
towns to be done without the landlord's consent. Voet (19. 2. 5), on 
the other hand, says that consent is necessary for the sub-location of 
lands, citing as authority the edict of Charles V of January 22, 1515 
(1 G. P. B. 363), and Pol. Ord. of April 1, 1580, Art. 30 (1 G. P. B. 
337). In the case of houses, he says, the landlord must be offered the 
opportunity of taking the house himself. Van der Keessel {Th. 674) 
says that a sub-location is valid ex jure communi, but not of lands with- 
out the written consent of the landlord, and bases this last proposi- 
tion on the Placaat of September 26, 1658 (2 G. P. B. 2615), re-enacted 
by Placaat of February 24, 1696 (4 G. P. B. 465). Van Leeuwen 
(4. 21. 4 and Gens. For. 1. 4. 22. 9) agrees with Grotius. It seems doubtful 
whether the enactments cited by Voet and Van der Keessel have the 
effect which they attribute to them. The conflict of opinions amongst 
the jurists is reflected in the decisions of the South African Courts ; 
and besides the question of the interpretation of the Placaats there 
is the further doubt whether they form part of the law of South Africa. 
See on the one side,-I'e Vries v. Alexander {uU sup.); on the other, 
Eckhardt v. Nolte {uU sup.). See also Kotze, Van Leeuwen, vol. ii, 
p. 168. 

There is a somewhat ill-defined rule that a lessor may object to 
a sub-location which he deems to be prejudicial to his interest, e. g. if 
the sub-lessee is likely to use the premises in a way unsatisfactory 
to him. Voet, 19. 2. 5 : Si conductor seoundus ejus conditionis sit ut 

S2 



260 THE LAW OF OBLIGATIONS 

How the The contract of letting and hiring is determined: 
ofWrets (1) by expiration of the term fixed or implied for its 
deter- duration ; ^ but in the case of a lease at will by a declara- 
™'"^'^' tion of intention by, or by the death of, either party ; ^ 
(2) by the determination of the lessor's interest,^ e. g., if he 
is merely a usufructuary* or fiduciary ; (3) by the insol- 
vency of the lessor ^ or of the lessee ; (4) by destruction of 
the subject-matter ; ^ (5) by merger of the titles of lessor 
and lessee in one person ; ® (6) by mutual agreement ; 
(7) by renunciation by either party for just cause. A just 
cause exists if the conduct of either party amounts to 
a repudiation by him of his duties under the contract. 
Such would be an entire failure to keep in repair by the 
party liable for repairs,'' or on the part of the lessee acts 
of waste,* or a contumacious refusal of rent.* It is safer, 
however, instead of leaving the law to determine whether 
a cause of forfeiture has occurred, to provide for the event 
by express agreement.-^" But in no case may the lessor 

magis utendo nociturus sit rebus conductis quam primus aut aliis usibus 
rem locatam destinaturus. See Rolfes, Nebcl cfc Oo. v. Zweigenhafi 
[1903] T. S. 185. But why cannot the lessor, if he apprehends any- 
thing of the kind, protect himseK by express stipulation ? Consult on 
the whole subject WiUe, Landlord and Tenant in South Africa, chap, vii, 
Subletting and Assignment; Morice, English and Roman-Dutch Law, 
p. 172. 1 V. d. L. ubi sup. ^ Voet, 19. 2. 9. 

^ In which case, however, the lessee must have a reasonable time to 
turn round. He must not be bundled out ' velut Jo vis ignibus ictus '. 
Voet, 19. 2. 18. * Voet, ,19. 2. 17. 

'' V. d. K. Th. 676 : Conductore vel etiam locatore foro cedente 
looatio post modicam dilationem eo tempore quo solent cives migrare 
exspirat, quod varie in diversis locis definitum est. 

* V. d. L. ubi sup. 

' Gr. 3. 19. 12 (lessor). If it is necessary to rebuild or repair the house 
the lessor may resume and retain possession for the purpose. Meanwhile 
the lessee pays no rent. Van Leeuwen, 4. 21. 7 and Decker, ad loc. 

* Voet, 19. 2. 16 ; i. e. of a serious character. Voet, 19. 2. 18. 

' Grotius (3. 19. 11) and Decker ad Van Leeuwen, ubi sup., say, 'if 
the rent is more than two years in arrear'. Of. Dig. 19. 2. 54. 7 ; and 
lex 56. In the Roman and Dutch Law a lessor might also resume the 
property in case of pressing need, if he showed that it was necessary 
for his own use. Cod. 4. 65. 3 ; Gr. 3. 19. 11 (ad fin.) ; Van Leeuwen, 
4. 21. 7 ; Voet, 19. 2. 16. Van der Keessel (Th. 675) doubts. In any 
event this is no longer law in Cape Colony since the General Law 
Amendment Act of 1879. 

^^ See, e. g., Voet, 19. 2. 5 (clause providing for forfeiture in the event 
of sub-letting without leave). 



SPECIAL CONTRACTS 261 

(or any other person who wishes to eject the lessee) take 
the matter into his own hands. He must apply to the 
Court to declare the lease forfeited, and to replace him in 
possession ; ^ and the Court will, in a fit case, relieve 
against forfeiture in the exercise of its equitable juris- 
diction. 

5. Mandate or Agency.^ The Roman-Dutch writers 5. Man- 
reflect the inadequate treatment of agency met with in agen°y. 
the Roman Law and typified in the fact that the word 

' mandate ' points principally to the relation between 
principal and agent, i. e. between employer and employed, 
while the word ' agency ' points rather to the juristic 
relation established by the agent between his principal 
and third parties.^ In this state of things, the English 
law of agency has been substantially adopted and followed 
in aU the Roman-Dutch Colonies.* Such differences as 
exist between the two systems belong to the theory of 
contract in general or are matter of detail, upon which we 
have not space to enter. 

6. Partnership. 5 In Ceylon the Enghsh law of Part- o. Part- 
nership for the time being in force has been introduced "^" ^^' 
by statute.* In South Africa and in British Guiana the 

law of partnership depends partly on statute, partly on 

1 Voet, 19. 2. 18. 

^ Mandatum — Lastgeving. Gr. lib. iii, cap. xii; Van Leeuwen, 
lib. iv, cap. xxvi ; Voet, lib. xvii, tit. 1 ; V. d. L. 1. 15. 14. 

' The Roman-Dutch Law, however, was tending to or had reached 
the same result as the English Law. See V. d. K. Th. 478 and 572. 

* In Ceylon Ord. No. 22 of 1866 introduces the English law of prin- 
cipals and agents for the time being in force. 

' Societas — Societeit — Compagnieschap — Maetschap- — Vennootschap . 
Gr. lib. iii, cap. xxi ; Van Leeuwen, lib. iv, cap. xxiii ; Voet, lib. xvii, 
tit. 2 ; V. d. K. Th. 698 ff. ; V. d. L. 4. 1. 11. 

" Ord. No. 22 of 1866. By Ord No. 7 of 1840, sec. 21 : ' No promise, 
contract, bargain or agreement, Tmless it be in writing and signed by 
the party making the same or by some person thereunto lawfully 
authorized, shall be of force or avail in law: — (4) for establishing 
a partnership where the capital exceeds one hundred pounds : Provided 
that -this shall not be construed to prevent third parties from suing 
partners, or persons acting as such, and offering in evidence circum- 
stances to prove a partnership existing between such persons, or to 
exclude parole testimony concerning transactions by, or the settlement 
of any account between, partners.' 



262 THE LAW OF OBLIGATIONS 

the Roman-Dutch common law.^ But it is very far 

from being the case that the partnership law of these 

Colonies differs entirely from the partnership law of 

England. 'Developed from a common source, viz. the 

mercantile custom of Europe, the two systems exhibit a 

Compari- great similarity, together with some notable divergences. 

English Whatever theoretical differences may be found to 

and exist between the Roman -Dutch and English systems, the 

Duteh" South African Courts have been guided and will continue 

partner- ^o be guided by the analogies of English Law. This is 

natural. The commercial conditions of to-day are not 

what they were one or two centuries back. The English 

rules have stood the test of practice, while much of the 

Roman-Dutch Law on this subject is purely theoretical. 

The channel of reception for the Enghsh Law is custom, 

which in the matter of partnership is much the same in 

South Africa as in England.' ^ 

Kinds of The law of South Africa recognizes various kinds of 

shfp^n"^ partnerships, in addition to joint-stock companies, which 

South in South Africa, as in Ceylon and British Guiana, are 

regulated by special statutes and which do not fall within 

the scope of this chapter. Partnerships proper are either 

(a) Or- ordinary or extraordinary. The law of ordinary partner- 

■nary. gjj^pg corresponds in most particulars with the law of 

England. The principal difference consists in the fact 

that in English Law the liability of partners for partnership 

debts is joint, while in Roman-Dutch Law it is joint and 

several.* But in South Africa, as in England, actions 

arising out of partnership transactions must be directed 

^ See The South African Law of Partnership, by Manfred Nathan, 
M.A., LL.D. (Johannesburg, 1913), which summarizes the law in 
a convenient form. 

^ The Commercial Laws of the World {South Africa), vol. xv, pp. 84-5. 
In an early Ceylon case, Boyd v. Stables (1821) Ramanathan, 1820-33, 
at p. 21, GifEard C.J. observed upon the affinity of the commercial 
law of England with that of Holland, and added ' We look upon every 
decision of the Courts of Westminster upon commercial subjects as 
a commentary upon the Dutch Commercial Law, the law which we 
are bound to observe.' 

3 V. d. K. Th. 703. So in Brit. Gui. by Ord. No. 20 of 1900, 
sec. 11. 



SPECIAL CONTRACTS 263 

against the firm, not against individual partners, and all 
the partners must, as a rule, be joined as defendants.^ 

Extraordinary partnerships are either : {a) anonymous (6) Extra- 
partnerships ; or (6) partnerships en commandite ; ^ °^ '"^'^^' 
or (c) (in Cape Colony) statutory limited partnerships 
created by Act 24 of 1861. The common element in all 
three cases is that certain non-active partners incur a 
limited liability, or no liability at all, to creditors of the 
firm. In the last two cases, but not in the first, the 
liability to active co-partners is limited to the amount 
agreed upon. In the first case it is unlimited.* But 
a dormant partner may not, any more than a declared 
partner, compete with the creditors of the firm in respect 
of debts due to him from the other partners.* 

7 & 8. Loan for Consumption s— Loan for Use.^ All this J^r^;^^"^" 
is pure Roman Law. Some matters connected with sumption 
money-loans and the permitted rate of interest have foruse! 
been considered above in the chapter on Operation of 
Contract.^ 

9. Deposit.^ This too is essentially Roman Law. But 9- ^^■ 

^ Commercial Laws of the World, vol. xv, ubi sup. ; Morice, 2n(i ed., 
p. 199. 

2 V. d. K. Th. 704. » Morice, p. 193. 

* Watermeyer v. Kerde's Trustees (1834) 3 Menz. 424 ; Sellar Bros. 
V. Clark (1893) 10 S. C. 168. 

'' Mutuum — ^Verbruickleening. Gr. lib. iii, cap. x ; Van Leeuwen, 
lib. iv, cap. v ; V. d. L. 1. 15. 2. 

* Commodatum — ^Bruickleening. Gr. lib. iii, cap. ix ; Van Leeuwen, 
lib. iv, cap. x ; Voet, lib. xiii, tit. 6 ; V. d. L. 1. 15. 4. 

' Supra, pp. 223-4. The S.C. Maoedonianum of the reign of Vespasian 
forbade loans of money to filiitamilias. It did not avoid the loan 
ipso jure, but might be pleaded by way of exception (Girard, p. 519). 
The f.f. might renounce the benefit of the S. C. after full age. It has 
been doubted whether, and how far, the S. G. has place in the modem 
law. It is, of course, not applicable to a f.f. of full age. But in case 
of minority there is a general inclination to hold that it may sometimes 
be usefully pleaded. Groenewegen, de leg. abr. ad Cod. lib. iv, tit. 28, 
says: Quum ne hodie quidem filii minorennes sui juris sint, in iis S. C. 
etiam moribus nostris obtinere nullus dubito. See also Voet, 14. 6. 5 
{ad fin.); and Compendium, 14. 6. 5 ; Cens. For. 1. 4. 3. 12 ; V. d. K. 
Th. 475. 

^ Depositum — Bewaergeving. Gr. lib. iii, cap. vii ; Van Leeuwen, 
lib. iv, cap. ii ; V. d. L. 1. 15. 5. Depositum sequestre and con- 
signation {supra, p. 235) are varieties of deposit. Gr. 3. 7. 12 ; V. d. L. 
loo. oit. 



264 THE LAW OF OBLIGATIONS 

the double penalty in case of depositum miserabile is no 
longer in use.^ A so-called deposit with a bank is not 
deposit but loan.^ A depositary sued for the return of 
the thing deposited may not avail himself of set-off 
{compensatio) or right of retention.* 

10. Pledge. 10. Pledge.* The contract of pledge, which defines 

the personal relations between pledgor and pledgee, is 
governed by the rules of Roman Law. The real rights 
created by pledge have been discussed in Book 11.^ 

11. Sure- 11. Suretyship or Guarantee,* A contract of suretyship 
gaMMitee. is * contract whereby one person agrees to be answerable 

for the debt ' or delict * of another. The principal debt 
may be civil or natural, but must not be illegal.' Any 
male person capable of contracting may conclude a con- 
tract of suretyship.^** But by the well-laiown enactments 
Senatus-Consultum Velleianum ^^ and Authentica si qua 
Special mulier ^^ women are prohibited from binding themselves 
rules of g^g sureties, and, in particular, married women are pro- 
women hibited from binding themselves as sureties for loans of 
sureties, j^q^qj ^q their husbands.^* Why the second of these 
enactments was passed, while the first, which was wide 
enough to cover all cases falling under it, was still in force, 
is imexplained.-^* The effect of these laws is so far-reaching 

1 Voet, 16. 3. 11 ; Groen. de leg. ahr. ad Dig. 16. 3. 1. 

^ Dig. 42. 5. 24. 2 : Aliud est enim credere, aliud deponere. Cf.Voet, 
20. 4. 14 ; 46. 2. 5. These passages speak expressly of a deposit with 
a bank which bears interest. But [semble) in the modern law if the 
money is to be used by the bank the contract is in every case a mere 
loan. 3 Maasdorp, p. 104. 

3 Voet, 16. 3. 9. 

^ Pignus — ^Pandgeving ofte Verzetting. Gr. lib. iii, cap. viii ; Van 
Leeuwen, lib. iv, cap. xii ; Voet, lib. xiii, tit. 7 ; V. d. L. 1. 15. 7. 

= Supra, pp. 162 ff. 

* Fidejussio — Borgtogt. Gr. lib. iii, cap. iii ; Van Leeuwen, lib. iv 
cap. iv ; Voet, lib. xlvi, tit. 1. ; V. d. L. 1. 14. 10. 

8 Gr". 3'. 3! 21'; Voet, 46. 1. 7. 

" Gr. 3. 3. 22 ; Voet, 46. 1. 10-11. 

" Even minors with the authority of their guardians. Voet, 46. 1. 5. 

^^ Passed in the consulship of Marcus Silanus and Velleius Tutor 
(a.d. 46). Dig. 16. 1. 2 pr. and 1; Van Leeuwen, 4. 4. 2. 

^^ Nov. 134 c. 8 (a.d. 556). ^^ Van Leeuwen, vhi sup. 

" In Oak V. Lumsden (1884) 2 S. C. at p. 150 Sir Henry de Villiers C. J. 
said : ' I have never found any satisfactory explanation of the passing 



SPECIAL CONTRACTS 265 

that money paid by a woman under a contract of surety- 
ship may be recovered back if she was ignorant of the 
benefit conferred by them/ and even sub-sureties, i. e. 
persons who have bound themselves as sureties for the 
female surety may plead them as a defence.^ There are, Cases 
however, some exceptions to the rule of non-liability, fromtheir 
These are principally the following : — (1) if the woman operation. 
has acted fraudulently, and in particular if she has 
professed herself to be a co-principal debtor ; * (2) if 
she has benefited by the principal contract,* or if she has 
gone surety for her creditor ; ^ (3) if, after the lapse 
of two years, she has confirmed her suretyship by a new 
agreement;® (4) if, being a public trader, she has 
become surety in relation to her business ; "^ (5) if 
expressly and with full knowledge of what she was 
doing, she has renounced the benefits of the Senatus- 
Consultum and of the Authentica.* A woman who has 
renoimced the benefit of the first will not be held by im- 
plication to have renounced the benefit of the second. 
There must be a separate and distinct renunciation of each, 
if a married woman is to be held liable for her husband's 
debts.» 

By the Roman-Dutch common law a contract of surety- 
ship need not be in writing.^" But in Ceylon ^^ no contract in Ceylon 
for charging any person with the debt, default, or mis- of surety- 
carriage of another shall be of force or avail in law unless ship must 

of the new law known as the Authentica si qua mulier, whereby married 
women are specially protected against their contracts of suretyship 
for their husbands, seeing that they were already protected under the 
general terms of the senatus consultum.' 

1 Voet, 16. 1. 12. 2 Voet, 16. 1. 2. 

3 Gr. 3. 3. 15 ; Voet, 16. 1. 11. 

* E. g. if she has received consideration for becoming surety. Voet, 
vU sup. and 46. 1. 32. = Gr. 3. 3. 16. « Voet, nhi sup. 

' Gr. 3. 3. 17 ; Voet, ubi sup. This does not apply when she has 
gone surety for her husband. 

* Gr. 3. 3. 18 ; Voet, 16. 1. 9; V. d. L. vhi sup. It is an unsettled 
question whether the renunciation must be notarially executed. See 
V. d. K. Th. 496 and translator's note, ad loo. ; Mackdlar v. Bond 
(1884) 9 App. Ca. 715 (in appeal from Natal). 

9 Gr. 3.3. 19; Voet, 16. 1. 10. 
i» V. d. K. Th. 501. " Ord. No. 7 of 1840, sec. 21. 



266 THE LAW OF OBLIGATIONS 

be in it be in writing and signed by the party making the 
^"*"^s- same. 

The In the Roman Law up to the time of Justinian a surety 

avaUabie might be sued before the principal debtor. Indeed, it was 
to sure- common practice to proceed against the surety first, for 
if the principal debtor were sued first, the surety's liability 
was extinguished by litis contestatio.^ Justinian, however, 
required the creditor to excuss the principal before pur- 
suing the surety.^ If he failed to do so, in case the principal 
debtor was solvent and within the jurisdiction, the surety 
benefi- might plead in his defence the beneficium ordinis seu 
nisTeu'^ex- excussionis.^ In the Dutch, but not in the Roman Law, 
cuasionis ; the surety has the further advantage that he may require 
the creditor to realize any real security which he may have 
for his debt before seeking to render the surety liable upon 
benefi- his personal obligation.* In the Dutch Law, as in the 
sion^ /^' Roman, sureties may also invoke the beneficium divisionis ^ 
benefi- and the beneficium cedendarum actionum.^ They may, 

cmm ce- 
dendarum however, renounce them.' 

actionum. 2^2. Carriage by land and by water. In the Roman 
riage by Law the scction of the praetor's edict — de nautis, stabu- 

^ Girard, pp. 755-6. 

^ Nov. 4, cap. i (a. d. 535) ; Van Leeuwen, 4. 4. 7. 

3 Gr. 3. 3. 27 ; Voet, 46. 1. 14. 

^ Gr. 3. 3. 32 ; V. d. K. Th. 507 and Diclat. ad loc. where he says: 
In Hollandia diu consuetudine receptum et petentibus HoUandiae 
Ordinibus etiam a Philippo II, 21 Feb., 1564, speciali lege con- 
firmatum est, ut fidejussores ejus debiti pro quo pignus vel hypotheca 
obligata est non prius in judicio conveniantur aut excutiantur quam 
excussa fuerit hypotheca et sic apparuerit earn ad solvendum non 
sufficere licet hypotheca ista pervenerit ad tertium possessorem 
(1 G. P. B. 387). The last clause only applies to a special hypothec 
of immoveables and perhaps also to a general hypothec of immoveables 
when the pledge has passed into the hands of a third party titulo 
lucrativo. It has no application to moveables (V. d. K. Dictat., loc. cit.). 
In Roman Law the rule was just the other way ; viz. the creditor must 
excuss the surety personally before pursuing the hypothecated goods 
of the debtor in the hands of third parties. Nov. 4, cap. ii (a. d. 535). 

^ Gr. 3. 3. 28 ; Voet, 46. 1. 21 ; V. d. L. 1. 14. 10. 

« Gr. 3. 3. 31 ; Voet, 46. 1. 27 ; V. d. K. Th. 506. 

' Gr. 3. 3. 29 ; V. d. K. Th. 502 ; and, in some places, says Van der 
Keessel, are taken to have renounced them, if the sureties bind them- 
selves ' one for all ', or ' each severally ', or ' each as principal debtor.' 
Cf . Gr. loc. cit. For del credere contracts see V. d. K. Th. 504. 



SPECIAL CONTRACTS 267 

lariis et cauponibus — made carriers by water, along with land and 
livery-keepers and inn-keepers, the insurers of goods en- ^ ^* ^^' 
trusted to them.^ Except in case of damnum fatale or of 
vis major their liability was absolute.^ The language of 
the edict does not in terms cover the case of carriers by 
land, and it has been doubted whether in the modern law 
they must be taken to be included within its scope. An 
affirmative answer has been given in the Cape Province.^ 
If the edict does not apply to them, they are liable 
as locatores operarum to show the highest diligence, but 
will not be answerable in damages except on proof of 
culpa.* 



PART II 

OBLIGATIONS ARISING FROM DELICT 

The second principal class of obligations is those which The law 
arise from delicts. A delict is a wrongful act which ff 'J^^^'''* 
grounds an action in favour of the person injured. In this cipaiiy 

Roman in 
origin. 



branch of law, as in others, the jus civile was received in 
Holland. In the pages of Grotius and occasionally of 
Voet we detect indications of a more archaic order of ideas 
derived from Teutonic sources. But the Roman Law drove 
the native law out of the field. In the text-book writers 

^ Dig. 4. 9. 1 pr. : Ait praetor Nautae caupones stabularii quod 
cujusque salvum fore receperint nisi restituent in eos judicium dabo. 
Cf. Van Leeuwen, 4. 2. 10. 

^ Dig. 4. 9. 3. 1 : Hoc edicto omnimodo qui recepit tenetur, etiamsi 
sine culpa ejus res periit vel damnum datum est nisi si quid damno f atali 
contingit. Inde Labeo scribit siquid naufragio aut per vim piratarum 
perierit non esse iniquum exceptionem ei dari. Idem erit dicendum et 
si in stabulo aut in caupona vis major contigerit. 

3 Tregidga & Co. v. Sivewright N. O. (1897) 14 S. C. 86 per de 
Villiers C. J. and Buchanan J., dissentiente Maasdorp J. 

« In Ceylon by Ord. No. 22 of 1866 the law of England for the 
time being is made applicable to all questions relating to carriers by 
land. In Brit. Gui. on the other hand by Ord. No. 6 of 1864 the law 
of England is applied to the carriage of passengers and goods by ships. 



268 THE LAW OF OBLIGATIONS 

and probably also in the practice of the Courts of the 
eighteenth century the Roman-Dutch law of delicts was 
substantially the same as the Roman Law expounded in 
the Digest and the Institutes of Justinian. Such a com- 
plete break in historical continuity is easily regretted. It 
is enough in this place to record it as a fact. 
The The Roman law of delicts, derived from the XII Tables 

^eorTof *^^ from a still more primitive customary law, came in 
delict. time, thanks to the directing influence of jurists and of 
praetors, to express a very complete theory of civil liability. 
A few simple principles covered the whole ground, and, 
adopted in modem codes, have been found sufficient to 
provide for the complexities of modem life. A man must 
Dolus see that he does not wilfully invade another's right, or care- 
an cu pa. jgggjy cause him pecuniary loss. If he does either of these 
Excep- things he is answerable in damages. There may also be 
cMes of cases, resting upon a more archaic principle, in which he is 
absolute answerable absolutely for damage which he has caused, 
though without intention and without neghgence. Such 
in a few words is the Roman theory of delictual liability. 
Defective In one respect the Roman law of delicts has suffered 
oloey" from the simplicity of its principles, namely, in its vocabu- 
lary. It is convenient to distinguish by different names 
the various groups of circumstances which give rise to 
liability. The English Law — poor in principle, rich in 
detail — does so. It distinguishes various heads of lia- 
bility under the names of assault, trespass, libel, slander, 
malicious prosecution, and the rest. The Roman Law has 
no such distinctions or corresponding terminology. 
Influence In the Roman-Dutch Colonies the English law of torts 
EngUsh ^^® imposed itself upon the Roman-Dutch law of delict 
law of much as the Roman law of delict imposed itself upon the 
the native law of Holland. The adoption of English nomen- 

coionies. clature has accompanied the adoption of much of the 
substance of the English Law. The process has gone 
further in some colonies than in others, but in all the 
influence of English Law has been very great. South 
Africa, here as elsewhere, is most retentive of the Roman- 



OBLIGATIONS ARISING FROM DELICT 269 

Dutch common law. In Ceylon and in British Guiana the 
reception of the English Law has gone further. 

The course of events briefly described in the foregoing Difficulty 
paragraphs makes it a matter of some difficulty to apply tematic' 
to the law of delicts the method of treatment applied in presenta- 
this volume to other departments of the Roman-Dutch 
Law. In writing of the law of persons, of things, and of 
contract we have tried to build upon the foundations laid 
in the seventeenth century by Grotius, Van Leeuwen, and 
Voet and in the eighteenth and early nineteenth centuries 
by Byhkershoek, Van der Keessel, and Van der Linden. 
For the law of delicts the foundations are wanting or must 
be sought in the pure Roman Law (which we suppose to 
be linown to our readers), while the superstructure, as 
observed above, is largely English in character, and the 
complex whole varies in the various colonies. In this 
chapter we shall state very shortly the general principles 
of the Roman-Dutch law of delicts so far as it is at all Method 
applicable to the conditions of modem life, and indicate 
how far these principles have been recognized as still in 
force in the Roman-Dutch Colonies. As a justification 
for treating the subject of delict rather in principle than 
in detail we may point to the example of modem codes.^ 

Any wrongful act or omission which grounds an action, 
i.e. any act or omission which is wrongful in law, is known 
in Roman Law as an injury. ' GeneraUter injuria dicitur The 
omne quod non jure fit.' ^ An injury may or may not cause meaning 
pecuniary loss {damnum), but every injury gives rise to of injuria, 
an action for pecuniary compensation (id quod interest 
— schade en interessen — damages). In some cases there 
is no injury or right of action imless pecimiary loss is 
proved ; in other cases there is an injury and right of 

^ The law of delicts occupies in the French Code five articles (1382-6), 
in the Dutch sixteen (1401-16), in the German thirty-one (823-53) ; in 
the Swiss Code des Obligations twenty-one (41-61). In the Digest of 
English Civil Law (ed. E. Jenks) it has been found possible to compress 
the law of torts into about three hundred articles. 

2 Inst. 4. 4 pr. ; Dig. 47. 10. 1 pr. (Ulpian) : Omne enim quod non 
jure fit injuria fieri dicitur. 



270 



THE LAW OF OBLIGATIONS 



Injuria 

sine 

damno. 

Damnum 

sine 

injuria. 



Classifica- 
tion of 
delicts : 
in Roman 
Law ; 



in Grotius 

Van 

Leeuwen, 



and Van 
der Lin- 
den. 



Classifi- 
cation 
adopted 
in this 
chapter. 



action, whether pecimiary loss is proved or no {injuria 
sine damno) ; in others, again, pecuniary loss may be 
proved, and yet no action lie {damnum sine injuria), 
because the law does not condemn either the act in itself 
or the act together with the consequent damage as con- 
stituting a legal wrong.^ 

The classification of delicts is a matter of some difficulty. 
In the Roman Law the delicts proper were four in number : 
viz. (l)furtum; (2) rapina ; (3) damnum injuria datum ; 
(4) injuria (specifically so-called).^ Since rapina was 
merely an aggravated form of furtum, the principal 
heads of delict may be reduced to three. This classifica- 
tion, however, is by no means exhaustive. There were 
other grounds of liability such as dolus, and there were 
certain quasi-delicts which differed from true delicts in 
little but in name. 

In writing of delicts proper Grotius and Van Leeuwen 
adopt a different arrangement.^ In their system delict 
{misdaad) is directed : (1) against life ; (2) against the 
person ; (3) against freedom {vryheid) ; (4) against honour ; 
and (5) against property. Both these writers treat the 
subjects of wrongs principally from the point of view of 
crime. Van der Linden * follows their lead except that he 
includes ' wrongs against freedom ' under the head of wrongs 
against honour, thus making four classes in place of five. 

Neither the Roman nor the Dutch arrangement is com- 
pletely satisfactory. In this chapter we shall speak of : 

1. Wrongs against the person ; 

2. Wrongs against property ; 

3. Wrongs against reputation ; 

4. Wrongs against domestic relations ; 

5. Wrongs not falling under any of the above-mentioned 
heads. 



Thus in GreyvensUyn v. Hattingh [1911] A. C. 355 it was held that 
no action lay against an adjoining owner, who hindered locusts from 
settling on his own land with the result that they settled on the land 
of the Appellant. 

^ Dig. ubi sup. : Speoialiter autem injuria dicitur contumelia. 

» Gr. 3. 33. 1 ; Van Leeuwen, 4. 32. 9. * V. d. L. 1. 16. 1. 



OBLIGATIONS ARISING FROM DELICT 271 

But first a few words must be said about the theory of General 
delictual liability in general, which is essentially the same delicts in 
as in Roman Law. Roman- 

In the modem law the Roman terminology serves not Law. 
as an enumeration of particular delicts, but as a general 
touchstone of liability. The underlying principles of in- 
juria and damnum injuria datum are applicable to 
all kinds of delict. To-day all delictual liabilities (with 
few exceptions) are referable to one or other of these two 
heads. ^ I am answerable for wilful aggression on another's 
right {injuria). I am answerable for careless aggression 
on another's right which causes pecuniary loss (damnum 
injuria datum). ^ In principle it would seem that any act 
which, if wilful, would produce liability under the first head, 
should equally, if careless and attended by loss, produce 
liability under the second. But this camiot safely be 
affirmed of the anglicized systems of Roman-Dutch Law 
which exist to-day. Thus an action lies for a false state- 
ment upon which I act to my pecuniary detriment, but 
not, probably, for a careless misstatement made with no 
intention to deceive. 

An act or omission, wUful or careless, wUl not support 
an action unless the act or omission was the breach of 
a duty owed to the plaintiff.^ 

Apart from the general theory of responsibility there 
are, as we shall see below, a few cases of absolute liability. 

1. Wrongs against the Person. To this head may Specific 
be referred the wrongs which in English Law are Imown j Wrongs 
as assault, battery, false imprisonment, malicious arrest, against 

^ ' With us all wrongs are either damna injuria data or injuriae 
proper.' 4 Maasdorp, p. 5. 

^ Some decisions in South Africa have gone far, and it is respectfully 
submitted too far, in the direction of laying down a general principle 
that where contumelia is absent no action lies without proof of pecuniary 
loss. See e. g. Edwards v. Hyde [1903] T. S. 381. But where the 
ground of action is defendant's negligence the proposition is unques- 
tionable. 

* Thus other persons do not always owe me a duty to abstain from 
the contravention of a public statute ; but they do owe me a duty 
not to cause me special damage by such contravention. 4 Maasdorp, 
p. 4. 



272 THE LAW OF OBLIGATIONS 

the If the wrongful act is an intentional aggression the plaintiff 

person. recovers damages measured in the discretion of the Court 
by the nature of the outrage.^ If the act is unintentional 
but careless the plaintiff is entitled to compensation for 
actual damage, if proved. In this case the action is 
usually termed an action for negligence.^ 

In principle, then, there is no liability without dolus or 
culpa. But in an action for false imprisonment it will be 
no defence to plead that the defendant acted in good 
faith and without negligence.* This is a departure from 
principle due to the fact that this action, like the action 
for malicious arrest and the action for malicious prosecu- 
tion (of which we shall speak hereafter), is derived from 
English Law and governed by EngUsh precedents.* 
Action for The action for seduction (defloratie) may be conveniently 
se uotion. mentioned under the head of wrongs against the person. 
In Dutch Law a virgin who had been deflowered might 
bring an action to compel marriage or alternatively to 
obtain compensation for the loss of her maidenhood,^ 
and if she were with child also for her lying-in expenses 
(kraam-kosten).^ In the modem law the action lies for 

1 Gr. 3. 34. 2 ; Van Leeuwen, 4. 35. 9. 

" The corresponding actions in Roman Law were the actio injuria- 
rum, when the wrong was intentional (Voet, 47. 10. 7), and the utilis 
actio legis Aquiliae for damnum culpa datum (Voet, 9. 2. 11). 

•* Nathan, Common Law ofS. A., vol. iii, p. 1693 (sec. 1649). 

' This, it is submitted, is the fact, though attempts have been made, 
as by Connor C.J. in Cottam v. Spdler (1882) 3 Natal Law Reports 
at p. 133, to accommodate these actions to the principles of the Roman- 
Dutch Law. They are in fact an alien element in the modern system. 
See ' Malicious Prosecution in Roman-Dutch Law '. S.A.L. J. vol. xxix, 
p. 22. 

^ Voet, 48. 5. 3 : ' aut ducere aut dotare'. The measure of damages 
is the additional amount of dos required to procure her a suitable 
marriage. Ibid. At common law the action did not lie if the woman 
knew that the man was married (but see V. d. K. Th. 801), or if she 
declined to marry him or could not lawfully marry him, or had married 
some one else. Voet, 48. 5. 4. But in South Africa the fact that the 
plaintifi is unwilling to marry the defendant has been held to be no 
longer available as a defence, the Marriage Order in Council, 1838, 
having abolished the action to compel marriage. Seaville v. GoUey 
(1891) 9 S. C. 39 ; Mvlholland v. amith (1901) 10 H. C. G. 333. 

* Gr. 3. 35. 8 ; also in case of the death of the child for the payment 
of the funeral expenses ; and for reasonable maintenance for the 
benefit of the child. V. d. L. 1. 16. 4. If the woman knew that the 



OBLIGATIONS ARISING FROM DELICT 273 

damages only.^ This action has no resemblance to the 
English action for seduction which a father can bring 
only for the pretended loss of his daughter's services.^ 

2. Wrongs against Property, Any intentional invasion 2. Wrongs 
of another's right to own, to possess, or to detain is action- pfop™ty. 
able.* Any person whose right is invaded may bring the 
action, whether entitled in possession or in expectancy. 

The corresponding actions in English Law are conver- 
sion, detinue, trespass to land and to goods. 

Damage to property falls under the same head. 

In this case if the act which caused the damage was un- 
intentional but negligent the action is usually termed an 
action for negligence. 

In all these cases the character of the wrong and the 
nature of the remedy is largely determined by English Law. 

The law of nuisance has been borrowed in substance 
from English Law.* 

In regard to trespass to land the modern Roman-Dutch 
Law retains something of its original character. An 
action will not lie unless the trespass was injurious or 
caused damage.' A trespass is injurious when it is 

man was married she may sue for lying-in expenses and maintenance. 
V. d. L. ubi sup. ; Voet, 48. 5. 6. 

^ Nathan, Common Law of S. A., vol. iii, p. 1678. Voet (48. 5. 5) 
says that the action is passively transmissible but not actively trans- 
missible before litis contestatio. However, as the last part of this pro- 
position is based upon the argument that the death of the woman 
deprives the man of the alternative of offering marriage, it may be 
that it does not hold good at the present day. As to the term of 
prescription in the action for seduction see Cardse v. Estate de Vries 
(1906) 23 S. C, at p. 539, and 4 Maasdorp,- p. 125. 

^ But the father may sue for lying-in expenses if he has defrayed 
them or made himself liable for them. Webb v. Langai ( 1 885) 4 E. D. C. 
68 ; 4 Maasdorp, p. 122. 

» Gr. 3. 37. 5 ; Voet, 9. 2. 10. 

^ See for instance Demerara Electric Go. Ltd. v. White [1907] A. 0. 
330 (Brit. Gui.). 

^ 4 Maasdorp, p. 3. ' Where a person innocently and inadvertently 
comes on the land of another without any ulterior object no Court 
will award any compensation in damages unless some actual damage 
to the land be proved.' Ibid., p. 37 — ' Take the case of a man tres- 
passing on another's land. If he does so inadvertently and innocently 
though he commits a tort, I can scarcely imagine that the Court would 
be justified in any circumstances in awarding even nominal damages 
against him.' Edioards v. Hyde [1903] T. S. at p. 387, per Solomon J, 

1713 T 



274 THE LAW OF OBLIGATIONS 

committed in defiance of or as a denial of another's 
right or accompanied by circumstances of insult or 
contumely. 

It may seem out of place to mention offences against 
life under the head of wrongs against property, but the 
action which the law gives to the relatives and dependants 
of a dead man is in fact referable to this title. Such 
persons if they have suffered pecimiary loss by the death 
may maintain an action for damages against the person 
by whom the death was intentionally or negligently 
caused.^ 
Wrongs 3. Wrongs against Reputation. All the authorities 
against agree that an action lies for written or spoken defama- 

reputa- = ^ 

tion. tion. Grotius devotes a short chapter to lastering or 
misdaed jegens eer which he describes as an outrage upon 
' the good opinion which others have of us ' .^ Van Leeuwen ^ 
in his corresponding chapter speaks of outrage upon a man 's 
' honour and good name '.* Both these writers evidently 
regard defamation as a species of injuria, which, as we 
read in the Digest, is a wrong directed against a man's 
person or affecting his dignity or reputation.^ If this 
identification is correct the plaintiff in an action for defa- 
mation, as in other cases of injury, must make out the 
The animus injuriandi as part of his case. This, however, is 

fiijuriandi. ^°* ^^^ ^^^' ^'^^ ^^ *^® language complained of is clearly 
defamatory in character, the intention to injure wiU be 

1 Gr. 3. 32. 16 ; 3. 33. 2 ; Van Leeuwen, 4. 34. 14 ; Voet, 9. 2. 11 : 
Nee dubium quin ex usu hodierno latius ilia agendi potestas extensa 
sit : in quantum ob hominem liberum culpa occisum uxori et liberis 
actio datur in id quod religioni judicantis aequum videbitur, habita 
ratione victus quern occisus uxori liberisque suis aut aliis propinquis 
ex operis potuisset ac solitus esset subministrare. See also, for a full 
discussion of this action, Union Government (Minister of Railways and 
Harbours) v. Warneke [1911] A. D. 657. For the law of Brit. Gui. see 
Lunke v. Demerara Co., Lid. (1906), Brit. Gui. Offi Gaz., vol. xxiv, 
p. 49; and Burke v. Brit. Gui. Gold Mines, Ltd. (1909), Brit. Gui. 
Off. Gaz., vol. xxix, p. 677. 

^ Gr. 3. 36. 1 (het goed ghevoelen dat anderen van ons hebben). 

" Lib. iv, cap. xxxvii. 

* For defamation of the dead and consequent actions see Voet, 47. 
10. 5. 

^ Dig. 47. 10. 1. 2 : Omnemque injuriam aut in corpus inferri aut 
ad dignitatem aut ad infamiam pertinere (Labeo cited by Ulpian), 



OBLIGATIONS ARISING FROM DELICT 275 

presumed.-^ In short the injurious mind required by the 
modem Roman -DutchLaw of defamation amounts to little, 
if to anything, more than the implied malice of the English 
law of libel.^ In other respects, too, such as in regard to 
the law of innuendo and of absolute and qualified privilege, 
the English Law is closely followed. But the Roman- 
Dutch Law departs from the English Law in two important 
particulars : (1) It makes no distinction between spoken 
and written defamation ; ^ And (2) according to the more 
probable opinion the truth of a defamatory statement is 
no defence to an action for damages.* 

Malicious prosecution is a kind of defamation and should Malicious 
be governed by the same rules. In Holland private ^^n^""" 
prosecutions for crime were infrequent, and the books 
speak on this topic with uncertain voice. The writers of 

^ Voet, 47, 10. 20: Sin tales fuerint prolati sermones qui per se 
et propria significatione contumeliam inferunt, injuriandi animus 
adfuisse creditur, eique qui ilia protulit probatio incumbit injuriae 
faciendae consilium defuisse. But in the modern law good intentions 
are no excuse for defamation, so that if the words are defamatory 
the presumption of malice is irrebuttable. So in the Ceylon case of 
Appuhami v. Kirihami (1895) 1 N. L. R. 83 defendants pleaded 
that the words complained of were spoken without malice and in the 
bona fide belief that they were true. Mr. Justice Withers said (at p. 85) 
'What is contumelious in itself, as such language is, presumes the 
animus et afEectus injuriandi, which is an element of slander.' 

2 In Botha v. Brink (1878) Buch. 118, de Villiers C. J., said: 'The 
rule of the Roman-Dutch Law differs, if at all, from that of the English 
Law in allowing greater latitude in disproving malice. Under both 
systems the mere use of defamatory words affords presumptive proof of 
malice ; but under our law, as I understand it, the presumption may be 
rebutted, not only by the fact that the communication was a privileged 
one — in which case express malice must be proved — but by such other 
circumstances (examples of which are given in Voet, 47. 10. 20) as 
satisfy the Court that the animus injuriandi did not exist.' 

^ 4 Maasdorp, p. 95. 

* Gr. 3. 36. 2 ; Voet, 47. 10. 9. But see V. d. K. TA. 803. The law has 
been settled for South Africa in the sense of the text. Botha v. Brink, 
■uhi sup. A further question is whether publication is necessary to 
ground an action for defamation (Morice, p. 250). In South Africa 
the question has been answered affirmatively. Holly. Zietsman (1899) 
16 S. C. 213 ; Marais v. Smuts (1896) 3 Off. Rep. 158. For the law 
of defamation in Brit. Gui. see Davis v. Argosy Co., Ltd. (1909) Brit. 
Oui. Off. Oaz., vol. xx, p. 6; and Godfrey v. Argosy Co., Ltd. (1909) 
Brit. Gui. Off. Gaz., vol. xx, p. 65. Ord. No. 3 of 1846 introduced the 
English law of slander, but not the English law of libel. Davis v. 
Argosy Co., Ltd., ubi sup. 

T2 



276 THE LAW OP OBLIGATIONS 

the seventeenth century give some indications that any 
person who failed to secure a conviction exposed himself 
to an action for damages. In the eighteenth century it 
seems probable that he would not have been liable in the 
absence of affirmative proof of injurious intent. However 
this may be, the question is merely of historical interest, 
for aU the Roman-Dutch Colonies have adopted the 
English law of malicious prosecution, which requires the 
plaintiff to establish nof'merely the element of malicious 
intention but also the absence of reasonable cause. ^ 

In Holland and Germany actions for injury were 

brought very frequently and upon the slightest occasion. 

Amende By Ms statement of claim the plaintiff asked for ' amende 

en"rofi'-''' ^onorabel ' and ' amende profitabel.' ^ The first was an 

tabel. apology from the defendant.' The second consisted in a 

sum of money to be paid to the plaintiff or applied 

to the use of the poor. In the modem law the amende 

J honorabel is no longer in use ; * the action for damages 

remains. 

The Roman actions for injuries included many cases of 
affront or insult, which cannot, except by an abuse of 
language, be described as defamation. In the modem law 
an insult which did not convey a defamatory meaning 
would probably not be actionable as such.^ This marks 
a departure from the point of view of the Roman Law. 
Injuries In the Roman Law an injury to wife, child, or servant 

1 (Brit. Gui.), Hansaratch v. Nehaul (1890) 1 Brit. Gui. L. R. (N. S.) 
117 ; (Ceylon), Corea v. Peiris [1909] A. G. 549 ; (South Africa) 3 Maas- 
dorp, p. 80. 

2 Gr. 3. 35. 2 ; 3. 36. 3 ; Voet, 47. 10. 17. For the form of request in 
the action for injuries see Papegay, vol. i, chap. viii. 

^ The defendant must make his palinodia before the Court ' bloots 
hoofts op zijn knyen biddende de Justitie ende den Impetrant om 
vergifEenis'. Ibid. 

* ' In South Africa the action for apology has somewhat fallen into 
disuse.' 4 Maasdorp, p. 88. In Ceylon the Dutch form of apology 
was declared to be obsolete in Moss v. Ferguson (1875) Ramanathan, 
1872-6, p. 165. 

* In Epstein v. Epstein [1906] T. H. 87 an interdict was granted 
to a wife who was annoyed by the attentions of private detectives. 
But this scarcely goes the length of proving that to ' shadow ' another 
person is an actionable wrong. 



OBLIGATIONS ARISING FROM DELICT 



277 



was construed aa an injury to the husband, parent, or to wife, 
master.^ It seems unlikely that this is so at the present " ' "' 
day. 

4. Wrongs against the Domestic Relations. An action 4. Wrongs 
for damages lies against an adulterer ^ which in modern the™^ 
practice is usually (but not necessarily) combined with domestic 
the action for divorce against the guilty spouse. Apart 

from adultery a husband has an action against one 
who deprives him of the consortium of his wife,^ and a 
father or master has an action against one who takes from 
him his child or servant.* 

5. Wrongs not falling under any of the above-mentioned 
Heads. The kinds of liability already mentioned are 
certainly not exhaustive. For example, the actio doli 
lay in Roman Law in any case where the plaintiff 
had been cheated by the defendant and had no other 
remedy.® Probably the action for fraud is now governed 
by the same conditions as in English Law.^ Other 
questions readily suggested themselves. Have I a right 
of action if one interferes with my livelihood, my trade, 
or my contracts ? What about • patents, trade-marks, 

1 Gal. iii. 221 ; Inst. 4. 4. 2 ; Gr. 3. 36. 6 ; Voet, 47. 10. 6. In the 
Ceylon case of Appuhami v. Kirihami (1895) 1 N. L. R. 83 it was 
said that a father is not entitled to sue for words defamatory of his 
daughter, although he may have felt pained and distressed. 

2 Gr. 3. 35. 9 ; Sutclijfe v. Sutcliffe and Westgate (1914), 8. A. L. J., 
vol. xxxi, p. 224 ; Norton v. Spooner (1854) 9 Moo. P. C. 0. 103. 

^ Kramarski v. Kramarshi [1906] T. S. 937 ; Union Government 
(Minister of BailvMys and Harbours) v. Wamehe [1911] A. D. at p. 667 
per Innes J. The action is based on injuria. Damages cannot be 
claimed for mere loss of consortium due to culpa. ' It is not a material 
loss, however deeply felt, and affords no ground for patrimonial 
damages.' Ibid. 

* In Roman Law a lilius familias might be stolen and become the 
subject of an actio furti. Inst. 4. 1. 9. But Mr. Morice, speaking of 
the action 'per quod servitimn amisit' says: 'Such wrongs do not seem 
to be known to Roman-Dutch Law ' (Eng. and Bom.-Dutch Law, 
2nd ed., p. 249). I do not think that the Roman-Dutch Law is so 
impotent as to afford no remedy for a flagrant wrong. 

5 Dig. 43. 1. 4 ; Voet, 4. 3. 8 ; Girard, p. 422. 

^ In Douglas v. Sander & Go. [1902] A. C. at p. 437 Lord Robertson 
delivering the judgment of the Board said : ' Their Lordships think it 
right to add that they do not desire to assert as on their own authority 
that an action of deceit in Natal will only lie under the conditions 
stated in the texts of the Roman Law.' 



5. Mis- 
cellaneous 
wrongs : 
e.g. 



fraud ; 



interfer- 
ence with 
livelihood, 
trade, or 
contract. 



278 THE LAW OF OBLIGATIONS 

copyright, and the like ? At what point and under what 
conditions does an act of yours (e. g. in the way of business 
competition) cease to be the exercise of a right and become 
an actionable wrong ? Questions such as these point to 
some of the most complex situations of modem life. The 
old writers may suggest an argument but hardly supply 
an answer. The various colonial judicatures will arrive 
each at its own solution guided, probably, in the absence 
of legislation, more by British or American decisions than 
by text-writers of the seventeenth or eighteenth centuries.-' 
As bearing on some of these questions, perhaps one may 
hazard the opinion that as a general rule an act otherwise 
innocent will become guilty if prompted by an injurious 
motive.^ If this be so the nature of the motive will go 
further than in English Law towards determiaing the 
quality of the act. 
Doubtful It has been said above that a man is liable for intended 
absolute wrongs, and for negligence which causes damage. Are 
liability, there also cases in which his liability must be stated higher, 
viz. as an absolute duty not to cause injury even in cir- 
cumstances which exclude dolus and culpa ? Perhaps a 
man's liability for mischief done by his animals ^ is of this 
character. If my dog bites you, you may obtain damages 
without proof of scienter or of negligence. In like manner 
I am liable for damage done by trespassing cattle, and by 
wild and savage animals which I have brought upon my 
land and which have escaped. It is doubtful whether 
there is any other case of absolute liability.* There are 
cases in which the duty of taking care is very high and the 
liability for carelessness proportionately great. But these 

1 Trade Competition, &c. (South Africa). 4 Maasdorp, pp. 32 fi. 

^ Animus nocendi vioino. Voet, 39. 3. 4. 

^ See Appendix to this Book (infra, p. 283). 

" The Judicial Committee may be thought to have incorporated 
the Rule in ByJands v. Fletcher into the Law of Cape Colony by its 
decision in Eastern and 8. A. Telegraph Co., Ltd. v. Cape Town Tramways 
Cos., Ltd. [1902] A. C. 381. As to whether an upper proprietor is, 
in the absence of negligence, liable for damage caused by a discharge 
of water from his land on to that of a lower proprietor, see Yan der 
Merwe v. Zak Eiver Estates, Ltd. (1914), 8. A. L. J., vol. xxxi, p. 195. 



OBLIGATIONS ARISING PROM DELICT 27d 

fall under the head of negligence and conform as a rule 
to English Law. 

Who are liable for delicts. Any person is answerable Who are 
for his wrongful acts if he had intelligence to understand Jeliots°? 
that he was doing wrong. This excludes Irmatics and 
young children.^ Corporations are answerable ex delicto 
for the wrongful acts of their agents, principals and 
masters for the wrongful acts of their agents and servants,^ 
provided in all these cases that the act was done in the 
course of the employment or service. 

An action lies as a rule against the (heirs or) personal 
representatives of a wrong-doer.* All persons who have 
in any way caused a wrongful act or its consequences, 
whether as principals or accessories, are answerable.* 
Every such person is liable in solidum, but if one makes 
satisfaction the others are discharged,* and cannot be 
called upon to contribute.* 

Who may suei Any person and the (heirs or) personal who may 
representatives of any person who has been wronged may ^"^ ' 
sue for damages.' Infants and lunatics may sue, assisted 

1 Gr. 3. 32. 19 ; Voet, 9. 2. 29 ; 47. 10. 1. As to drunkards see 
Voet, ibid. 

^ Grotius (3. 38. 8) says that masters are not as a rule bound by 
the delicts of their servants except to the extent of unpaid wages; 
nor are fathers bound by the delicts of their children. Schorer, ad loc. ; 
Van Leeuwen, 4. 2. 8 ; V. d. K. Th. 476. But if the wrongful act 
was committed by servant or son in the course of employment (quoties 
illi deliquerunt in officio aut ministerio oui a patre dominove fuerunt 
praepositi) the master or parent is liable in solidum. Voet, 9.4. 10. Van 
der Keessel, however {Th. 477 and Bictat. ad loc), says that masters 
are not as a rule liable, even then, if they have not been benefited 
{locupletioresfacti) by the delict. Husbands (semble) are not answerable 
for the delicts oiE their wives (V. d. K. Th. 225; vide supra, p. 89, n. 7). 
But see Melius de VilUers, The Roman and Roman-Dutch Law of 
Injuries, pp. 48-9, and Nathan, Common Law of South Africa, vol. ii, 
pp. 1547-8. There is a strange want of authority on the subject. 

3 Gr. 3. 32. 10 and Schorer, ad loc. ; Voet, 9. 2. 12. But an action 
for ' injuries ' is not passively transmissible before litis contestatio. 
Inst. 4. 12. 1 ; Voet, 47. 10. 22 ; Sande, Decis. Fris. 5. 8. 4. Grotius 
says (3. 35. 5) 'unless carried through to judgment' (dan nae gegeven 
vonnisse), but wrongly. * Gr. 3. 32. 12. 

5 Gr. 3. 32. 15 ; Voet, 9. 2. 12. " Voet, 9. 2. 20 {ad fin.). 

' Gr. 3. 32. 10. But where there is no special damage as in most 
cases of defamation the action is not actively transmissible before 
litis contestatio. Gr. 3. 35. 4 ; Voet, 47. 10. 22. The children of a 



tions. 



of dam- 



280 THE LAW OP OBLIGATIONS 

by their tutors or curators. Corporations may sue for 
wrongs against property, but not for wrongs against repu- 
tation, for a corporate body as such has no reputation to 
lose. A wife may sue her husband for real injuries of 
a serious character.-'- 
General General exceptions from liability.. No one is liable 
ti^n? foi" ine-vitable accident,^ or for acts done in the lawful 
exercise of a right* or performance of a duty.* No 
action lies against a judge for acts done or words spoken 
in honest exercise of his judicial office. If he acts in bad 
faith or with injurious intention he will, perhaps, be liable.^ 
No action lies, as a rule, if the plaintiff consented to the 
alleged wrong.* 
Measure Measwe of damages. The damages recoverable for 
delict vary according as damages are or are not of the gist 
of the action. If actual pecuniary loss to the plaintiff is 
a necessary condition of defendant's liabihty, the sum 
recoverable as damages will be adjusted, so far as possible, 
to the loss actually sustained.' If actual pecuniary loss 
is not a necessary condition of defendant's liability the 
assessment of damages lies in the discretion of the judge,* 
who will take accoimt not only of the loss,* if any, actually 
sustained, but also, especially in the case of actions in the 
nature of injuria, of circumstances which aggravate or 

defamed person, however, may sue for the consequential injury to 
their own reputation. Gr. loo. oit. ; Voet, 47. 10. 5. 

1 Voet, 47. 10. 2. 

2 Gr. 3. 34. 4 ; Voet, 9. 2. 15 and 29. ' Act of God,' Voet, 9. 2. 21 
{ad fin.). 

3 E.g. defence of one's person: Gr. 3. 33.9; 3.34.4; Voet, 9. 2.22— 
defence of one's own property : Dig. 43. 24. 7. 4 ; Voet, 9. 2. 28 — • 
parendi neeessitas : Voet, 47. 10. 3 — error: Voet, 47. 10. 20 — provoca- 
tion: ibid. 

* E. g. intervention to stop a breach of the peace. Voet, 9. 2. 29. 

s Voet, 47. 10. 2. 

^ Voet, 47. 10. 4; Dig. 47. 10. 1. 5: Quia nulla injuria est quae in 
volentem fiat. For contributory negligence see Voet, 9. 2. 17 ; who 
says 'novum non est ut in concurrente duorum culpa is teneatur cujus 
culpa major conspicitur.' See also Pollock, Torts, Appendix D, ' Con- 
tributory Negligence in Eoman Law.' In the modern law English 
decisions are followed. 4 Maasdorp, p. 70. 

' Voet, 9. 2. 6 and 11. « Or jury. 

9 Voet, 47. 10. 18. 



OBLIGATIONS ARISING FROM DELICT 281 

mitigate the offence.^ Sometimes damages are exemplary, 
sometimes merely nominal.^ But whenever actual loss is 
taken into account it is essential that the damages (or, 
more correctly, the damage) should not be too remote, i. e. 
that the loss to the plaintiff which forms the basis of assess- 
ment should be connected not too remotely with the 
wrongful act or omission alleged.* In other words the 
loss must have been not merely the consequence of a 
wrongful act or omission but also a consequence wMch 
the defendant foresaw, or, judged by ordinary standards, 
might or could have foreseen had he been reasonably care- 
ful and prudent. In estimating damages account is taken 
not merely of actual expense, depreciation of property, and 
the like (damnum emergens), but also of the loss of probable 
profit {J,ucrum cessans). 

In case of injury to the person, physical pain and dis- 
figurement go to enhance the damages,* but allowance is 
not made for mental suffering and anguish. All this is in 
substantial conformity with English Law. 

Quasi-delicts.^ Under the title of obligationes quasi ex Quasi. 
delicto the Roman Law mentions the following cases of 
liability : (1) the occupier of a house or room from which 
anything is thrown or poured down so as to do damage 
to a person passing or standing beneath {actio de effuso vel 
dejecto) ; * (2) the owner or occupier of a house who keeps 
something placed or suspended which falls on some one 
passing or standing on the road beneath {actio de posito 
vel suspense) ; "^ (3) the keeper of a ship, tavern, or stable 
on whose premises a theft is committed or damage done 
whether by his servants or by others, not being merely 
travellers or passengers {actio de damno in nave aut 

1 Voet, 47. 10. 13 and 17. 

^ The South African Courts have, however, in many cases shown 
a marked disinclination to giving nominal damages. Supra, p. 271, 
n. 2. 

3 Voet, 9. 2. 16 ff. * Gr. 3. 34. 2 ; Voet, 9. 2. 11. 

^ Gr. lib. iii, cap. xxxviii ; Van Leeuwen, lib. iv, cap. sxxix. 

" Inst. 4. 5. 1. 

' Inst. loc. cit. ; Gr. 3. 38. 5 ; V. d. K. Th. 810 ; and see RecMsg. 
Obg., pt. i, no. 98. 



delicts 



tion of 
actions 



282 THE LAW OP OBLIGATIONS 

caupona facto)} These may be regarded as cases of abso- 
lute liability or (which comes to the same thing) as cases 
in which the law draws an irrebuttable inference of culpa 
and of consequent liability.^ 

Actions of this class are actively, but not passively, 
transmissible.^ 
Limita- Limitation of Actions. Actions arising out of delict are 
usually prescribed by the lapse of thirty years, but actions 
for verbal or written injiu-ies * by the lapse of one year 
from the time when the injured party had knowledge of 
the wrong. The law as to limitation of actions now, 
however, depends for the most part upon statutes in 
the various colonies. 



PART III 

OBLIGATIONS ARISING FROM SOURCES OTHER 
THAN CONTRACT AND DELICT 

Obiiga- Whenever the law gives one man a personal claim 
vari^^ ^^ against another and an action for damages in case of failure 
causarum to perform the corresponding duty, the relation between the 
parties may be termed an obligation. We can, for example, 
if we choose, speak of the duties arising out of the domestic 
relations, e.g. the mutual duties of husband and wife, 
parent and child, guardian and ward, so far as they are 
capable of legal enforcement, as arising from obligations 
created not by agreement or wrong, but by operation of 
law. Many other obligations of the same kind suggest 
themselves, such as exist between executor and legatee, 
fiduciary and fideicommissary, trustee and cestui-que- 



figuris. 



1 Inst. 4. 5. 3 ; Gr. 3. 38. 9 ; V. d. K. Th. 811. 

^ Another case of quasi-delict was 'si judex litem suam fecerit'. 
Inst. 4. 5. pr. The subject of judicial liability in the modern hiw 
has been touched on above. 

^ Inst. 4. 5. 3 {ad fin.). 

" Gr. 3. 35. 3 (and Groen. adloc.) ; 3. 36. 4 ; Voet, 47. 10. 17 (ad fin.) 
and 21 ; Van Leeuwen, 4. 37. 3, and Kotz6's note ; Beukes v. Coetzee 
(1883) 1 S. A. R. 71. 



OBLIGATIONS ARISING PROM DELICT 283 

trust, or such as arise from payment of money by mistake 
to a person not entitled (indebiti solutio). Some of these 
are classed in Roman Law under the head of ' obligationes 
quasi ex contractu' ^ or ' quasi-contracts,' owing to the fact 
that they approach more nearly to obligations arising from 
contract than to obligation arising from wrong. But, in 
fact, they differ both from contractual obligations and 
from one another. We prefer, therefore, following Gains, 
to refer them to a vague and undefined class as obligations 
arising from various kinds of cause {Obligationes ex variis 
causarum figuris). To speak of them in detail lies outside 
the scope of this work. 



APPENDIX 

LIABILITY FOR INJURY BY ANIMALS 

In Roman Law an owner's liability for mischief done by 
his animals was an absolute liability independent of negligence. 
If there was no dolus or culpa on his part he might, instead 
of paying damages, surrender the animal to the plaintiff 
{noxae deditio). The actio de pauperis lay in respect of harm 
done by domestic animals (originally only cattle, later any 
domestic animals ; Dig. 9. 1.4) contra naturam sui generis 
(contra naturam nocere dicuntur animalia quoties mansueta 
feritatem assumunt. Voet, 9. 1. 4). An analogous action 
{de pastu pecorum) lay for damage done by trespassing cattle. 
Paul. Sent. Becept. 1. 15. 1. In the Dutch, but not in the 
Roman Law there was also the right to impound. Gr. 3. 
38. 11 ; Groen. de leg. abr. ad Dig. 9. 2. 39. 1 ; Cens. For. 1. 
5.3.4; Voet, 9. 1.3. 

It seems doubtful whether a person from whose custody 
a wild animal had escaped was ever in Roman Law liable for 
mischief done by it in the absence of dolus or culpa. Dig. 
9. 1. 1. 10: In bestiis autem propter naturalem feritatem 

1 Inst. lib. iii, tit. 27 ; Gr. lib. iii, capp. xxvi-xxviii (verbintenisse 
door wets-duiding) ; Van Leeuwen, lib. iv, capp. xxviii and xxix. 



284 THE LAW OF OBLIGATIONS 

haec actio {sc. de pauperie) locum non habet ; et ideo si 
ursus fugit et sic nocuit : non potest quondam dominus 
conveniri, quia desinit dominus esse ubi fera evasit : et ideo 
et si eum occidi meum corpus est. Windscheid, vol. ii, 
sec. 457 : Fiir den Schaden, welchen ein nicht gehorig 
bewachtes gefahrliches Thier anrichtet, haftet derjenige den 
die Schuld trifEt nach den Grundsatzen des Aquilischen 
Gesetzes. See Inst. 4. 9. 1 [ad fin.) and Vinnius, ad loc, 
Noxal surrender was allowed in Dutch Law in the same 
cases as in Roman Law. Vinnius {ad Inst. 4. 9. 1) says that 
noxal surrender is disused (Hodie noxae deditio non usurpatur 
sed damnum datum aestimatur arbitrio judicis). But Groene- 
wegen {ad loc.) dissents. To the same effect are Gr. 3. 38. 10 ; 
Van Leeuwen, 4. 39. 6 ; Voet, 9. 1. 8.i 

In South Africa the Courts have inclined to treat a man's 
liability for the acts of his animals as based on culpa. This 
has let in by a back door the doctrine of scienter, which forms 
no part of the pure Roman-Dutch Law. See the somewhat 
unsatisfactory judgments of the Appellate Division in 
Robertson v. Boyce [1912] A. D. 367. Grotius apparently 
excludes dogs from the rule of noxal surrender; but Voet 
(9. 1. 6) makes no such distinction. See Decker ad Van 
Leeuwen, ubi sup., and Rechtsg. Obs., pt. ii, no. 96. 

Noxal surrender has been declared to be obsolete in South 
Africa {Parker v. Reed (1904) 21 S. C. 496), but {semble) still 
obtains in Ceylon {Folkard v. Anderson (1860) Ramanathan, 
1860-8, p. 68 ; Jacobs v. Perera (1896) 2 N. L. R. 115 ; 
Thwaites v. Jackson (1895) 1 N. L. R. 154). For the law 
relating to injuries by animals in Brit. Gui., see Vandeyar v. 
Richter (1907) Brit. Gui. Off. Gaz., vol. xxv, p. 1485 ; and 
in appeal Richter v. Vandeyar (1907) Brit. Gui. Off. Gaz., 
vol. xxvi, p. 16. It is not necessary to prove scienter. 

^ Prof. Fockema Andreae makes it clear that in the early Dutch Law 
noxal surrender if not universal was at all events very general. See 
Het Otid-Nederlandsch Bwrgerlijk Becht, vol. ii, pp. 113 fE ; and the 
author's notes to Gr. 3. 33. 6 and 3. 38. 10. 



BOOK IV 

THE LAW OF SUCCESSION 

In this book we shall speak of the devolution of property 
upon death, under the two titles of testamentary and 
intestate succession. But first it will be convenient to 
preface some remarks on succession in general. 

CHAPTER I 

SUCCESSION IN GENERAL 

It is familiar knowledge that, according to the principles The 
of Roman Law, the heir, whether testamentary or intestate, o^"]Je°° 
until the time of Justinian was, and under that emperor's heir in 
legislation might be, the universal successor of the de- Law.*" 
ceased.^ As such, he assumed the dead man's rights and 
Ucibihties, the latter in full and without reference to the 
sufficiency of the assets. Hence the phrase ' damnosa 
hereditas ', meaning a succession which involved more 
loss than gain to the acceptor. Further, in the early law, 
the family-heir, if the paterfamilias had not excluded him Heres 
by testament, could not refuse the inheritance, which 
vested in him immediately upon the death of his ancestor. 
For this reason he was known as ' heres suus et necessarius ' . 
His liability in this regard was the same, whether he 
was instituted heir in his ancestor's will, or left to succeed 
upon an intestacy.^ In the maturity of Roman Law, how- 
ever, he might abstain from the inheritance (beneficium 
abstinendi),^ and so avoid liability. But if he inter- 
meddled with the estate, he ' sustained the person ' of the 

^ Dig. 50. 17. 62: (Julianus) Hereditas nihil aliud est quam suc- 
cessio in universum jus quod defunctus habuerit. 

2 Girard, p. 794. 

3 Inst. 2. 19. 2 ; Dig. 29. 2. 57 ; Girard, p. 893. 



286 



THE LAW OP SUCCESSION 



Heres 
extraneus 



Changed 
position 
of the 
heir in 

Justinian' I 



deceased,., and succeeded not only to the benefits of the 
inheritance, but also, without limit, to its burdens.'^ 

The ' extraneus heres ', that is, any one who was not suus 
et necessarius,^ was, originally, in a better position. As 
soon as the testator died,* the inheritance was said to be 
' delated ' to the heir ; * but he need not accept unless he 
pleased. If he neither accepted nor acted as heir (pro 
herede gerere), he inciu'red no liability. If he accepted or 
acted as heir, he was said to 'adiate' the inheritance (adire 
hereditatem), and from that moment was in the position of 
a universal successor. It might happen that the heir 
hesitated to enter, apprehensive that the inheritance 
might prove ' damnosa '. In such case the creditors of the 
estate would apply to the praetor to fix a ' spatium deh- 
berandi ' ,^ a period within which he must accept, if he meant 
to do so ; and a similar indulgence "was given on the 
application of the heir himseK.^ If at the end of the time 
fixed ' he had failed to accept, he was treated by the 
praetor as having refused the inheritance, which was then 
offered or delated to the person next entitled. Such was 
the law until the time of Justinian. But that emperor's 
legislation gave him two alternatives.* (1) He might 
' enter at once, subject to the benefit of inventory (benefi- 
cium inventarii). If he did so, he was hable not as uni- 
versal successor, but only to the extent of the assets. 
This was a change of far-reaching consequence. ' It 

1 Inst. 2. 19. 6 ; Cod. 6. 30. 22. 14. 

^ Inst. 2. 19. 3 : Ceteri qui testatoris juri subjecti non sunt extranei 
heredes appellantur. The case of the slave {heres necessarius) does 
not concern us. 

3 I.e. in the simple case of a sole heir instituted unconditionally. 
Girard, p. 870. 

* Dig. 50. 16. 151 : Delata hereditas intellegitur quam quis possit 
adeundo consequi. 

^ I. e. to give the heir the option of asking for it, or of allowing the 
creditors to realize the estate. Gaius, ii. 167 ; Dig. 28. 8. 5. pr. ; 
Girard, p. 879. 

« Dig. 28. 8. 1 and 5. 

' Originally not less than one hundred days. Dig. 28. 8. 2. Justinian 
allowed nine months when deliberation was granted by the magistrate, 
one year when granted by the emperor. Cod'. 8. 30. 22. 13 a. 

8 Inst. 2. 19. 5 and 6 ; Cod. 6. 30. 22. 14 a (gemini tramites). The 
inventory must be completed within three months. Cod. 6. 30. 22. 2. 



SUCCESSION IN GENERAL 



287 



was ', as Dr. Hunter observes, ' a bold and successful 
stroke to convert the heir into a mere official, designated 
by the deceased for the purpose of winding up his affairs 
and distributing his property. The heir was now a mere 
executor, with the privilege of being residuary legatee.' ^ 
(2) On the other hand, if he did not choose to take ad- 
vantage of the procedure by inventory, he might, as under 
the old law, claim the spatium deliberandi. In that event, 
under Justinian's system, if he did not expressly repudiate 
the inheritance within the time allowed, he was deemed 
to have accepted.^ An acceptance ^ or repudiation,* once 
made, was irrevocable except by a minor, who might 
obtain from the praetor restitutio in integrum.^ 

No department of the Roman-Dutch Law is more 
thoroughly penetrated by the Roman tradition than that 
of testamentary succession. The institution was unknown 
to early Grermanic Law.* The whole law of testaments, 
therefore, is derived from foreign, namely from Roman, 
sources, and principally through the channel of the Canon 
Law. As to the intestate heir — ^though ascertained in 
accordance with rules of customary, not of Roman, origin — 
once determined, he is in the same position as the heir 
instituted by testament. In the later stages of the Dutch 
Law, as in the Roman Law, both the one and the other were 
universal successors of the deceased.'' In English Law 
the universal successor is unknown.^ In his place we 
find an executor or administrator charged with the office 
of applying the dead man's personalty in payment of 

^ Hunter, Roman Law (3rd ed.), p. 765. 

2 Cod. 6. 30. 22. 14. => Inst. 2. 19. 5. ^ Cod. 6. 31. 4. 

° Some further indulgence was allowed to a suus heres of full age, 
provided that the estate had not been sold by the creditors. Cod. 
6. 31. 6. 

* Tacitus, Germania, cap. 20 ; Fockema Andreae, Het Oud-Neder- 
landsch Burgerlijk Recht, vol.' ii, pp. 313 ff. ; Gr. 2. 14. 2. 

' Gr. 2. 14. 7 : Erfgenaem ofte oir is een die intreed in des overledens 
boedel als sijn recht ende last in't gemeen verkregen hebbende. Cf. 
Van Leeuwen, 3. 10. 3. In the Dutch Law the heres suus et necessarius 
was unknown. Even descendants were free to accept or repudiate 
as they thought fit. Voet, 29. 2. 2. 

' At all events we must go back to the time of Glanville to find him. 
E. Jenks, Short Hist, of Eng. Law, p. 63. 



The 
Dutch 
Law of 
testa- 
ments is 
Roman in 
origin. 



288 



THE LAW OF SUCCESSION 



The testa- 
mentary 
executor 
in 

Roman- 
Dutch 
Law, 



and in 
the 

modem 
law. 



debts and legacies, and of distributing the surplus amongst 
his next of kin, i. e. the persons entitled to succeed in the 
event of intestacy. Since 1897, the deceased's realty 
also passes in the first instance to his personal representa- 
tives, who apply it, if necessary, in payment of debts ; 
and also, if the testator has so directed, but not otherwise, 
of legacies. 

Testamentary executors were not unknown to the law 
of Holland, but their functions were confined within 
narrow limits. They were, in fact, as Van der Keessel ^ 
observes, ' procurators appointed by the testator to 
manage his funeral, to recover what is due to him, to pay 
legacies and debts, and to administer his property until 
a division thereof can be effected.' But they ' cannot 
debar the heirs from the inheritance, unless the testator 
has directed otherwise, nor alienate the property without 
their consent '. It would seem from this that the appoint- 
ment of executors did not affect the position of the heir 
as universal successor ^ (in every case where he had not 
obtained benefit of inventory),* nor prevent him from 
suing or being sued in respect of debts due to or by the 
deceased. An office so alien to English ideas of the func- 
tion of an executor, has not held its ground in the Colonies 
against the competing analogy of the English Law.* By 
legislation or by practice executors and administrators of 
the English type have superseded at once the executor 



1 V. d. K. Th. 323. 

2 Gr. 2. 21. 7 ; Gens. For. 1. 3. 1. 3 ; Took. And., vol. ii, p. 348. 

' In Holland the benefit of inventory was not granted as of course. 
Voet, 28. 8. 11 : Nee promiscue beneficium hoc omnibus ex ipsa lege 
patet, sed ad id rescriptum impetrandum est, sic ut simpliciter inven- 
tarium conficiens non liberetur necessitate aeris alieni in solidum 
solvendi. The application must be made to the Sovereign or, in 
Holland, to the Hooge Raad. Instructie van den Hoogen Rood in 
Holland of May 31, 1582, art. 23; Gr. 2. 21. 8 ff, with Schorer's note 
ad loc. ; Hall. Cons., vol. i, no. 27 ; Van Leeuwen, 3. 10. 7 fi ; V. d, L. 
1. 9. 10 ; 3. 1. 7 ; Papegay, vol. i, chap. 18. 

* The older conception of the executor's office is reflected in the 
P. C. cases, De MontfoH v. Broers (1887) 13 App. Ca. 149 (Cape), 
and Farnum v. Administrator-General of British Guiana (1889) 14 A. C. 
651. See also (for Ceylon) Staples v. de Saram (1867) Bamanathan, 
1863-8 at p. 275. 



SUCCESSION IN GENERAL 289 

and the universal successor of the old law. To-day ' an The 
inheritance is the net balance of the estate of a deceased ^f the°heir 
person which is left after the debts and legacies have been in the 
paid, andwhich has to be handed over by theexecutortothe i^^ 
heir. The heir, therefore, is merely a residuary legatee '.^ 
If the deceased dies intestate the heir is in the same 
position as if he had been appointed sole legatee by will. 

The heir, having been reduced in the modern law to this 
entirely secondary position, it is matter of complete 
indifference whether a testator does or does not institute 
an heir by his wiU. The institution of the heir,^ which 
was once ' caput et fundamentum testamenti ', is no longer 
a necessary formaHty. Consistently with this, again 
contrary to the Roman Law, a man may die partly testate, 
partly intestate.* What he fails to dispose of by his will 
goes to his intestate successor.* In Roman Law it would 
have gone to the instituted heir by accrual.^ 

It is common to testamentary and to iiitestate succession 
that a child or grandchild of the deceased must bring into 
account what has been advanced to him during the 
deceased's Hfetime. The Romans called this process of 
accounting 'collatio bonorum'. The Dutch lawyers call 
it 'inbreng'.^ 

^ Maasdorp, p. 104. Eor the history of the law and the position 
of the heir in South Africa see Fischer v. Liquidators of the Union Bank 
(1890) 8 S. 0. 46. For Ceylon Law see PuUe v. Pulle (1893) 2 S. C. R. 
at p. 106. In British Guiana the heir continued to incur all the 
liabilities of a universal successor until the year 1909. (Deceased 
Persons Estates Ordinance (No. 9 of) 1909, sec. 7.) For the older la,w 
see Colonial Bank v. Representatives of Werk-en-Rust (1890) 1 Brit. 
Gui. L. R. (N. S.) at p. 141. 

2 Fock. And., vol. ii, p. 329 ; Vinnius ad Inst. 2. 14. 12 ; Van 
Leeuwen, 3. 2. 2 and Decker ad loc. ; V. d. K. Th. 290. If the testator 
does not appoint an heir the (debts and) legacies are paid by his executor 
or intestate heir. Voet, Compendium, 28. 5. 6. 

' Voet, 28. 1. 1 ; 28. 6. 26. * V. d. K. Th. 309 and 322. 

* Voet, 29. 2. 40: Jus accrescendi, quatenus Romani juris subtili- 
tatibus nititur, inter coheredes locum non habet. See, however, this 
passage. Grotius (2. 24. 19 and 2. 26. 4) merely follows the Roman Law. 
Van der Linden says (1. 9. 6) that the jus accrescendi applies, unless 
each of the heirs is appointed to a separate portion. Voet {ubi sup. ) and 
Schorer ad Gr. 2. 26. 4 make the question depend upon the intention 
of the testator. See also Van Leeuwen, 3. 4. 4 (and Decker ad loc. ) and 
3. 6. 8 ; and V. d. K. Th. 326. ' Van Leeuwen, lib. iii, cap. xvi. 



290 



THE LAW OF SUCCESSION 



Contents 
of this 
chapter. 



The 

different 

kinds of 

will in 

Roman 

Law. 

The 

solemn 

will: 

(a)written 



CHAPTER II 

TESTAMENTARY SUCCESSION 

In this chapter we shall consider: (1) how wiUs are 
made ; (2) who may make a wiU ; (3) who may take 
under a will ; (4) who may witness a wiU ; (5) restric- 
tions on freedom of testation ; (6) institution and sub- 
stitution of heirs ; (7) acceptance and repudiation of 
the inheritance ; (8) legacies ; (9) codicils ; (10) how 
wills and legacies are revoked; (11) fideicommissa ; 
(12) mutual wills. 

1. How Wills are made. By the latest Roman Law 
wiUs were either; (A) solemn, or (B) privileged ; and each 
of these, again, might be either : (1) written, or (2) spoken 
(nuncupative)} 

A solemn written will was one which was wholly com- 
mitted to writing by the testator, or by another at his 
request.^ It must be : (1) produced by the testator ; 
(2) to seven ^ competent witnesses ; (3) asked to witness 
it ; * (4) all present at the same time ; (5) the testator 
declaring in their presence that it was his will ; (6) and 
in their presence signing it ; ^ (7) the witnesses afterwards 
signing ; (8) and sealing ; (9) the whole taking place 
uno contextu.^ If the testator could not write, another 
person (not a witness) might do so for him. The signa- 
ture of the testator was unnecessary if the wiU was holo- 
graph, i. e. wholly written in his own hand.'' 

1 Voet, 28. 1. 3. 2 Qj. 2. 17. 13. 

^ A blind man's wiH required the presence of a tabularius or of an 
extra witness. Cod. 6. 22. 8 ; Gr. 2. 17. 15. 

* Voet, 28. 1. 6. They must be 'specialiter ad hoc rogati, aut saltem 
ante testimonium certiorati ad testamentum se adhiberi'. Dig. 28. 1. 
21. 2. 5 Voet, 28. 1. 5. 

" Cod. 6. 23. 21. 2 ; Vopt, 28. 1. 4 ; Dig. 28. 1. 21. 3 : Est autem uno 
contextu nullum acttmralienum testamento intermiscere. 

' Cod. 6. 23. 28. 6 : Si quis sua manu totvun testamentum vel codi- 
cillum conscripserit et hoc specialiter in scriptura reposuerit, quod sua 
manu hoc coiiecit, suificiat ei totius testamenti scriptura et non alia 
subscriptio requiratur neque ab eo neque pro eo ab alio. 



TESTAMENTARY SUCCESSION 291 

A solemn nuncupative will was made when the testator (h) nun- 
declared his last will and testament by spoken words in '="pa'*ive. 
the presence of seven competent witnesses, all present at 
the same time, and convoked ad hoc} 

Privileged wills {privilegiata — minus sollemnia), like Privileged 
the solenm will, were either written or spoken. Of the first ^' 
sort there were several kinds known to the Roman Law : 
viz. testamentum — {a) tempore pestis conditum ; (6) ruri 
conditum ; (c) parentum inter liberos ; (d) militare.^ 
Most of these were recognized by the Dutch Law. Voet 
says that in Holland a will made in time of fierce pesti- 
lence in the presence of two witnesses is good, provided 
that the presence of a notary cannot be secured.^ In 
the case of a will made in the country, the Roman Law was 
content with the presence of five witnesses.* Voet sees 
no reason why a wiU so made should not be upheld, though 
the general opinion was that the modern law admitted 
no relaxation of general rules in favour of dwellers or 
sojourners in the country.^ The mihtary testament, 
i. e. one made by a soldier in expeditione, required no 
solemnities whatever.® Voet, following Grotius, permits 

^ Gr. 2. 17. 10-11 ; Voet, 28. 1. 10-11, 

^ To the above may be added testamentum principi oblatum and 
testamentum actis magistratus insinuatum (in modern times known 
as t. judiciale), which derived their validity from the authority of the 
Princeps or magistrate and required no further solemnity. Cod. 6. 23. 
19 ; Gr. 2. 17. 14. Voet (28. 1. 19) dismisses the view that testaments 
in favour of pious causes are privileged. Grotius (2. 17. 31) doubts. 
Van der Keessel (Th. 302) expresses no decided opinion. 

^ Voet, 28. 1. 12. Van Leeuwen (3. 2. 15) doubts. Jure civili the 
usual number of witnesses was required, but they need not be present 
at the same time. Cod. 6. 23. 8. 1. Semble, the will only holds good 
if the testator dies of the sickness. V. d. K. Th. 301. From Grotius 
(2. 17. 31) it would seem that according to one view such a will might 
be made underhand, or nuncupativelyin the presence of two witnesses. 
See Groenewegen, de leg. ahr. ad Cod. 6. 23. 8 ; and BecMsg. Observ., 
pt. i, no. 40. Grotius adds as another doubtful case a testament 
made ' by verloop van oorlog '. 

* Cod. 6. 23. 31. 3 : Si in illo loco minime inventi fuerint septem 
testes, usque ad quinque modis omnibus testes adhiberi jubemus. 

^ Voet, 28. 1. 13. Grotius (2. 17. 30) and Van Leeuwen (3. 2. 15) 
are against it. Van der Keessel (Th. 300) agrees with Voet, ' saltem 
in casu necessitatis '. 

" Inst. lib. ii, tit. 11 ; Dig. lib. xxix, tit. 1 ; Cod. lib. vi, tit. 21 ; 
Gr. 2. 17. 29 ; Van Leeuwen, 3. 2. 14. 

1J2 



292 THE LAW OF SUCCESSION 

the same informal mode of testation to ambassadors and 
their suites residing abroad in the course of duty.^ The 
testament whereby an ascendant disposes of property 
amongst his or her children or remoter descendants, if 
written out in full in the testator's own handwriting, 
requires no witness.^ The last-named kind of wiU may 
even be nuncupative (minus sollemne nuncupativum), but 
must, in that case, be proved by two witnesses.* The 
testator may distribute the property amongst his children 
in any proportion he pleases. ' Children ' means legiti- 
mate children, at all events if the father is the testator ; 
in the case of a mother, perhaps illegitimate children may 
be considered to be on the same footing as legitimate 
issue.* It seems that, though only children may be 
instituted in this kind of will, legacies may be made to a 
wife, or even to a stranger, if the will has been read and 
declared in the presence of witnesses.* It is essential that 
the document put forward as a holograph wiU should 
really be a declaration of the testator's last wishes, and not 
merely a draft or memorandum of a wiU to be executed 
afterwards. Further, every child must be named, and 
no one of them may be disinherited.® 

So far, we have spoken of wiUs framed upon Roman 

1 Voet, 28. 1. 14. 

2 Nov. 107, cap. i (a.d. 541); Voet, 28. 1. 15 ; Van Leeuwen, 3. 2. 13; 
Cens. For. 1. 3. 2. 19. Voet says that if the will is written by another 
person by testator's direction it requires two witnesses. Van Leeuwen 
merely says that he must subscribe it himself. So Grotius (2. 17. 28). 

^ Gr. 2. 17. 28 ; Voet, vhi sup. ; Gens. For., ubi sup. The witnesses 
may be male or female. Groenewegen, de leg. abr. ad Inst. 2. 10. 6 ; 
de Haas ad Cens. For., ubi sup. * Voet, 28. 1. 16. 

^ Nov. 107, cap. i (abrogating God. 6. 23. 21. 1 and 3. 36. 26) ; Voet, 
ubi sup. Whether two witnesses were sufficient, and whether the 
witnesses were a condition of validity or merely of proof, are points 
upon which the commentators are not in agreement. See Windscheid, 
Lehrbuch des PandektenrecMs, vol. iii, sec. 544. 4 and notes. 

" Voet, 28. 1. 17. The texts on the subject of the testamentum 
parentis inter liberos are not very clear. The principal enacting 
words of the Nov. run (in Latin) as follows : Nos igitur volumus si 
quis litteras sciens inter iilios suos voluerit facere dispositionem, 
primum quidem ejus praescribere tempus, deinde quoque filionun 
nomina propria manu, ad haec uncias in quibus seripsit eos heredes, 
non signis numerorum significandas, sed per totas litteras declarandas, 
ut undique clarae et indubitatae consistant. 



TESTAMENTARY SUCCESSION 293 

models. The authorities generally agree that no one is 
forbidden to make his will in Roman form ; though, they 
add, it is not usual to do so.^ Dutch custom prescribed 
other forms of will-making, of which we shall now speak.^ 

In the seventeenth century, Grotius tells us,* wills were How wills 
usually made in one of two ways : either (1) before two mrdein 
Schepenen and the Secretary of the Court ; * or (2) before Holland, 
a notary and two witnesses. If the testator wished to 
disherit a child, the witnesses must be Schepenen.* In 
the case of the notarial wiU, the notary must know the 
testator,* or failing that, must know the witnesses,^ who 
must know the testator ; and iii the last event, the fact 
of knowledge must be recorded in the instrument.^ As to 
the manner of executing the notarial will, the procedure 
varied. Sometimes the will, verbally pronounced by the 
testator, was reduced to writing by the notary, and 
entered in his protocol, from which a copy might after- 
wards be obtained.' Sometimes the notary read ^° to the 

1 Gr. 2. 17. 16 ; Voet, 28. 1. 20 ; V. d. K. Th. 293 ; V. d. L. 1. 9. 1, 
whose statement, however, does not extend beyond the nuncupative 
wiU with seven witnesses. But this mode, he adds, is now very 
seldom used. 

^ For the early history of wills in the Netherlands see Fock. And., 
vol. ii, pp. 313 fi. and Wessels, Hist. B.-D. L., pp. 510 ff. 
3 Gr. 2. 17. 17-18 ; Van Leeuwen, 3. 2. 6 ff. ; V. d. L. 1. 9. 1. 
^ Van der Keessel {Dictat. ad Gr. 2. 17. 16) says : Hie modus testandi 
fuit antiquissimus et inde ab anno 1400 receptus. See Bechtsg. 06s., 
pt. iii, no. 44. 

= V. d. L. 1. 9. 5. (ad fin.) ; V. d. K. Th. 294. This seems to have 
been enacted by an Edict of Charles V of unknown date : ' edicto 
quodam Caroli V '. Vinnius, ad Inst. 2. 10. 14, sec. 4, citing Groene- 
wegen, de leg. abr. ad hunc tit. ; Sententien van den Hoogen enProvincialen 
Baad, no. 72. 

' « Perpetual Edict of Charles V of October 4, 1540, art. 14 ; 1 G. P. B. 
319 ; Gr. 2. 17. 22 ; Voet, 28. 1. 24. 

' These must be males, of full age and good repute (Luyden van eeren, 
weerdich van gheloove). Perpetual Edict, libi sup. ; G. 2. 17. 21. 

* Gr. 2. 17. 22. A will is not void which fails to express this fact, 
says Voet (28. 1. 24). But see Besolution of the States of Holland and 
West Friesland of March 18, 1671 ; 3 G. P. B. 487. 

° Gr. 2. 17. 23. This process, which seems to have been wiry common, 
is neatly described by Neostadius : Decis. van den Hove, no. 1 (ad fin.) : 
Notarius excipit viva voce mentem testatoris et deindr, ad proba- 
tionem, redigit ejus voluntatem, nuncupative prolatam in scriptis, 
et registro suo inserit. 
" By Cape Act No. 3 of 1878, sec. 1 ; Transvaal Ord. No. 14 of 



294 THE LAW OF SUCCESSION 

testator in the presence of witnesses a will previously 
committed to writing, after which he asked the testator 
if he had understood it, and acknowledged it as his last 
will. If the testator assented, it was held sufficient, 
though without the signature or seals of testator or wit- 
nesses.^ Vinnius ^ objects to this latter method, that it 
affords an opportunity for fraud. Wills of the above- 
described kinds are termed ' open wills '.* 

A special kind of notarial will is the * closed will ' 
(besloten testament).^ This is an instrument written by 
the testator, or by another by his direction,^ and signed 
by him, which he produces to a notary and two competent 
witnesses, declaring it to be his last will. The notary then 
encloses the will in a wrapper, seals the wrapper on the 
outside, and adds a note of the testator's declaration, 
which is subscribed by the testator ® and the witnesses 
{acte van super scriptie)? 

A testament, Voet says, must be dated ; otherwise it 

1903, sec. 5 ; and O. F. S. Ord. No. 11 of 1904, sec. 5 : No notarial 
will shall be taken to be invalid by reason that the same was not read 
over by the notary or by any other person to the testator in the pre- 
sence of the subscribing witnesses. The Cape Act was passed in 
consequence of the decision in Meiring v. Meiring's Exors. (1878) 
Buoh. 27 ; 3 Roscoe 6, that a will of this kind, which had not been 
read by the notary to the testator in the presence of the witnesses, 
was invalid. Voet, 28. 1. 23; Cens. For. 1. 3. 2. 8 (ad fin.); Sande, 
Decis. Fris. 1. 4. 5. 

' Voet, 28. 1. 23, citing Groenewegen, de leg. abr. ad Inst. 2. 10. 3; 
V. d. K. Th. 296. Van der Linden says (1. 9. 1): 'Although it is 
necessary that the testator should sign in the presence of the notary 
and witnesses, yet a will clearly declared by word of mouth to the 
notary and the witnesses must be followed as a valid will in case the 
testator should die before the minute was properly drafted and was 
thus unable to sign.' 

* Vinnius ad Inst. 2. 10. 14, sec. 4. 
^ V. d. L. nbi sup. 

•» Van Leeuwen, 3. 2. 5 ; Voet, 28. 1. 26 ; V. d. L. M sup. 
^ Provided such other takes no benefit under the will. V. d. L. 
ubi sap. 

* Voet, ubi sup. The testator's endorsement was (semble) usual, 
but not necessary. See de Haas ad Cens. For. 1. 3. 2. 7, citing 
Gr. 2. 17. 25, which he understands to apply to the closed will. 

' When the will was opened it was usual for the notary and witnesses 
to be present. Gr. 2. 17. 26; Decker ad Van Leeuwen, ubi sup. The 
fact was placed on record by the notary {acte van opening). V. d. L. 
ubi sup. 



iJjJKi'AiVlJiJNTAJKY «UUU±!iSSiUJN 295 

will be held void, unless the circumstances exclude the 
risk of fraud.^ 

In the modern law, it is not required that a will should in the 
be framed in any particular form of words. Even an ^^^^ 
institution of heirs is unnecessary. Of course, the law particular 
lays down certain rules of construction of words and words is 
phrases,^ which in the absence of evidence of a contrary required. 
intention on the part of the testator, the Courts will foUow. 
But we must not allow them to detain us. Here it wiU be 
enough to mention two particular clauses frequently 
inserted in wills, which were known in the Dutch Law as 
the ' clausule reservatoir ' and the ' clausule derogatoir ', 
each of which requires a few words of explanation. 

The clausule reservatoir^ is a clause in which the Clausule 
testator reserves to himself the right of adding to, or sub- toir."^^^ 
tracting from, the dispositions of the will, and ratifies by 
anticipation any further dispositions which he may make 
under his hand, such dispositions to have the same effect as 
if insertedinthetestament. Voet expresses a strong opinion 
against this practice, but hesitates to declare it illegal.* 

The clausule derogatoir is one in which the testator pur- Clausule 
ports to disable himself by anticipation from departing tob°^^' 
from the tenour of his will, either by any subsequent dis- 
position whatever, or by any disposition not expressed in a 
particular form of words or the like.^ Voet justly observes 

1 Voet, 28. 1. 25. ^ See Gr. lib. ii, cap. xxii. 

' Cens. For. 1. 3. 11. 10; Holl. Cons., vol. i, no. 125 ; Bynkershoek, 
Qmest. Jur. Priv., lib. iii, capp. iv-v ; V. d. K. Th. 337; V. d. L. 
1. 9. 2. The reservatory clause is expressly retained by Cape Ord. 
No. 15 of 1845, sec. 4, which applies both to notarial and to under-hand 
wills. In re Sir John Wylde's will (1873) Buoh. 113. See also Nelson 
V. Own-ey (1886) 4 S. C. 355, where de Villiers C.J. said : ' All the writers 
Whom I have consulted are agreed that the reservatory clause in 
a will cannot confer validity on a subsequent testamentary instrument 
unless that instrument is inoontestably proved to have been executed 
by the testator, and unless it purported to be and was executed under 
and by virtue of the reservatory clause in the will.' 

^ Voet, 28. 1. 29. 

' Gr. 2. 24. 8 ; e. g. containing the words ' arma virumque cano ' 
(Voet, 28. 3. 10), or the whole of the credo (Holl. Cons., vol. v, no. 42), 
or the words ' Heaven be my portion ' (V. d. L. 1. 9. 11), or ' Our soul 
waits upon the Lord. He is our help and shield' (Bynkershoek, 
Quaest. Jur. Priv., lib. iii, cap. vii). 



296 



THE LAW OF SUCCESSION 



are made 
in the 
colonies. 



How wills that such a clause contains merely a signification of future 
intention and no derogation from testator's power of 
changing his will.^ Whether he has done so or not depends 
upon the true construction of his subsequent testamentary 
dispositions. Express revocation of the clausule deroga- 
toir is not necessary.^ 

In the various Roman-Dutch Colonies the formaUties 
necessary to the execution of wills have been the subject 
of legislative enactment, and the general effect has been 
to sanction wiUs of the Enghsh type executed in the pres- 
ence of two witnesses either in addition to or in substitu- 
tion for other types of testament of Dutch or Roman origin. 
Thus in all the South African Colonies wiUs may, and 
generally speaking must, be executed by the testator 
or by some person in his presence and by his direction 
in the presence of two or more competent witnesses.' 
Notarial wills are not abolished but are not in frequent 
use at the present day.* Privileged wills, such as the 
testamentum parentis inter liberos, are still permitted 
except in Natal.^ In British Guiana the Enghsh type 
of will was made optional by Ord. No. 3 of 1839 and 

^ Voet, 28. 3. 10. Schorer {ad Gr. ubi sup.) and Van Leeuwen (3.2. 
16) agree. 

^ de Haas in notis ad Gens. For. 1. 3. 11. 6. The whole question is 
fully discussed by Bynkershoek in Quaesl. Jur. Priv., lib. iii, capp. 
vi and vii. See also Van Leeuwen, 3. 2. 16-17, and V. d. K. Th. 328. 

3 Cape Ord. No. 15 of 1845, sec. 3 ; Natal Law 2 of 1868, sec. 1 ; 
Transvaal Ord. No. 14 of 1903, sec. 1 ; 0. E. C. Ord. No. 11 of 1904, 
sec. 1. It should be noted that the Cape Act requires that the testator 
and witnesses should sign at least one side of every leaf upon which 
the wiU is written. The Transvaal and 0. F. S. Ordinances require 
them to sign ' every sheet '. 

^ 1 Maasdorp, p. 125 ; Nathan, Common Law of South Africa, vol. iii, 
p. 1830. 

^ The Cape Ordinance by implication, the Transvaal and 0. F. S. Ordi- 
nances in express terms, preserve the privileged wUl. By Natal Law 
No. 2 of 1868, sec. 1, all wills must be signed by the testator in the 
presence of two witnesses. But (sec. 12) : Nothing in this Law con- 
tained shall in any wise affect the validity of any wUl or codicil executed 
before a notary public ; and (sec. 3) Any person being in actual 
military service, or being in Africa but not in this Colony, on a journey, 
or a trading, exploring, or hunting expedition or the like, or any 
marine or seaman, being at sea, may dispose of his property in a testa- 
mentary way, or may execute an effectual will or codicil in the same 
manner as he might have done if this Law had not been passed. 



TESTAMENTARY SUCCESSION 297 

compulsory by Act No. 12 of 1906. The last-named enact- 
ment expressly abolishes the notarial wiU, and by implica- 
tion the privileged will. In Ceylon a will must be executed 
either in the presence of a notary and two witnesses, or in 
the presence of five witnesses/ if a notary is not present.^ 

2. Who may make a Will ? All persons may make a will Active 
except : (a) minors under the age of puberty ; ^ (6) persons mentary 
mentally incapable * and drunkards ; ^ (c) interdicted pro- capacity. 
digals (Ao/s- ofte stads-kinderen).^ There seems no reason 
why a deaf-mute, though born so, if of sufficient under- 
standing, should not make a will at the present day.'' 

^ Ord. No. 7 of 1840, sec. 3; Pereira, pp. 418 ff. There is a saving 
in favour of the vi^ills of ' any soldier being in actual military service, 
and any mariner or seaman being at sea', who 'may dispose of his 
personal estate as he might have done before the making of this 
Ordinance ' (sec. 13). 

^ I. e. it a notary is not present acting in his notarial capacity. Perera 
V. Perera [1901] A. C. 354. 

3 Gr. 2. 15. 3 ; Van Leeuwen, 3. 3. 2 ; Voet, 28. 1. 31 ; V. d. L. 
1. 9. 3. In this case 'ultimus impuberis aetatis dies coeptus pro com- 
plete habetur.' Voet, loc. cit. In Ceylon : ' No will made by any male 
under the age of twenty-one years or by any female under the age of 
eighteen years shall be valid unless such person shall have obtained 
letters of venia aetatis or unless such person shall have been lawfully 
married. Ord. No. 21 of 1844, sec. 2. In Natal ' No will or codicil 
shall be valid unless the testator shall at the time of execution or 
re-execution thereof have attained the age of twenty-one years, or 
have otherwise become entitled to the privileges of majority by eman- 
cipation from paternal power by venia aetatis or otherwise '. Law 2 of 
1868, sec. 6. 

* Gr. 2. 15. 4 ; Voet, 28. 1. 34. = Voet, 28. 1. 35. 

» Gr. 2. 15. 5; Van Leeuwen, 3. 3. 2; Voet, 28. 1. 34. But see 
Van der Keessel (Th. 281), who says : ' The will of a prodigal which is 
just and equitable under the 39th Novel of Leo is supposed to be 
valid in Holland also, as held by the Court on the 22nd Nov. 1616 ' 
(Decis. van den Hove i^aw Hollandt, no. 116). Leo's rule was : ut quae 
judicium erroneum quodque prodigum designet, dictet, neque appro- 
batione neque confirmatione digna habeantur ; quae vero ad utilitatem 
spectent suscipiantur atque nequaquam reprobentur. Quid enim si 
prodigus aut hereditatem necessariis suis relinquere aut pauperibus 
sua distribuere aut denique gravem servitutis torquem servorum 
cervicibus adimere velit ? See authorities cited by Voet, ubi sup. 
Van der Linden (1. 9. 3) says: De laatstgemelden worden nogthans tot 
het maken van uitersten wil toegelaten mits zij ziilks doen na bekomen 
octroij en ten voordeele hunner bloedvrienden. See also Van Leeuwen, 
3. 3. 2. 

' Grotius (2. 15. 6) and Voet (28. 1. 36) say that, if a dumb man 
cannot write, he should obtain a licence from the Sovereign {land- 
overheid ; Princeps), and Van der Linden recommends this course in 



298 THE LAW OF SUCCESSION 

Married women and minors may make wills without the 
authority of their husbands ^ and guardians ^ respectively. 
If a deceased spouse, married in community, has left 
something to the survivor, and at the same time directed 
how the common property shall devolve after the sur- 
vivor's death, acceptance by the survivor of the benefit in 
question deprives him or her of the power of disposition 
over his or her share of the joint-estate.^ We shall return 
to this subject later.* 
Passive 3. Who may take under a Will. Except as hereafter 
tey^™^" stated any person whether native or foreigner,^ in- 
capacity, dividual or corporate, born or unborn, may take under 
a will, provided he be ascertained or ascertainable.* 
The exceptions were or are : (1) spiritual persons 
or houses {geestelicke luiden ende huizen) prohibited from 
taking immovable or movable property ; ' (2) the tutors 
and curators or administrators of minors, and their 
children, as well as the godparents and concubines of 
such minors prohibited from taking under the wiU of 

the case of persons who become thus afflicted after birth. See Bechtsg. 
Obs., pt. ii, no. 38. A blind man jure civili must make his will before 
a notary or other eighth witness. Cod. 6. 22. 8. Whether a third 
witness was necessary in the case of a notarial will was debated. Voet, 
28 1 37 

i Voet, 28. 1. 38; V. d. K. Th. 100. 

2 Gr. 1. 8. 2; Voet, 28. 1. 43. ^ Gr. 2. 15. 9. 

* For other cases of incapacity now obsolete or inapplicable see 
Van Leeuwen, 3. 3. 4 ff. ; Voet, 28. 1. 39-40 ; Bynkershoek, Qmest. 
Jiir. Priv., lib. iii, cap. ii ; V. d. K. Th. 277-80 ; V. d. L. ubi mp. 
The last-named author does not refer to the Placaat of the States of 
Holland of February 26, 1751 (8 G. P. B. 535), which punishes a man 
or woman who elopes with a woman or man of any age who has parents 
living, or with a minor who is under tutelage, with loss of testamentary 
capacity (Zullen inhabil zyn om te konnen disponeeren onder de 
leevenden of ter zaake des doods van de Goederen, &c.). 

° Gr. 2. 16. 1 ; but not outlaws (woestballingen) ; or those who 
adhere to the enemy. Van Leeuwen, 3. 3. 9 ; Voet, 28. 5. 5. 

« Gr. 2. 16. 2 ; Voet, 28. 5. 2. 

' Gr. 2. 16. 3 ; or by gift inter vivos. Edict of March 20, 1524 
(1 G. P. B. 1588). The prohibition, so far as regards title by succession, 
was extended to movable property by Placaat of October 16, 1531 
(2 G. P. B. 2974 ; Bynkershoek, Qimest. Jur. Priv., lib. iii, cap. i). 
Further provisions in the same sense were enacted by the States of 
HoUand by Placaat of May 4, 1655 (1 G. P. B. 1592) ; Voet, 28. 5. 3 ; 
V. d. K. Th. 284 ; V. d. L. 1. 9. 4. The effect of this obscure enact- 
ment is fully considered by Bynkershoek, ubi sup. 



TESTAMENTARY SUCCESSION 299 

such minors any immovable property or interest therein ; ^ 
(3) a person who has contracted a betrothal or marriage 
with a minor without the necessary consents of parents, 
relatives, or of the Court, prohibited from taking any 
benefit under the will of such minor ; ^ (4) adulterine and 
incestuous bastards prohibited from taking directly or 
indirectly under the will of either parent more than is 
sufficient for their necessary maintenance* — other ille- 
gitimate children, however, may be benefited without 
restriction, unless the testator has at the same time legi- 
timate children, in which case the bastard issue may not 
take more than one-twelfth of his estate ; * (5) persons 

1 Perpet. Edict of October 4, 1540, art. 12 (1 G. P. B. 318) ; Gr. 
2. 16. 4 ; Voet, 28. 5. 8 ; V. d. K. Th. 285-6 ; V. d. L. 1. 9. 4. Voet 
suggests that the same prohibition extends to a tutor's wife (sed 
quaere), and to some other cases. Van Leeuwen speaks (3. 3. 12) in 
general terms of the tutors, curators, and administrators of minors, their 
wives or children, godparents, concubines, &c. The restriction does 
not apply to parent-guardians (Lybreghts, Redenerend Vertoog over H 
Notaris Ampt, vol. i, cap. xix, sec. 7), and other guardians who are 
near relatives. The limits of this exception are Ul defined. See 
Groenewegen, de leg. ahr. ad Cod. 5. 37. 17 ; Bynkershoek, Quaest. 
Jwr. Priv., lib. iii, cap. iii. Van Leeuwen (3. 3. 12) says that the 
restriction does not extend to any persons who without last will would 
by law inherit the property of such minors ab intestato. Van Leeuwen 
(loc. cit.) and others extend the prohibition to ' movable property of 
considerable value ' (roerende goederen van merkelyke waarden). 
Bynkershoek dissents, as also de Haas ad Gens. For. 1. 3. 4. 43. Van der 
Keessel (Th. 286) agrees with Van Leeuwen. It seems clear that by 
' concubines ' is meant concubines of the minors, though Van Leeuwen 
takes it to mean concubines of the tutors, &c. 

2 Perpet. Edict of 1540, art. 17 (1 G. P. B. 319) ; Gr. 2. 16. 5 ; 
Van Leeuwen, 3. 3. 16 ; Voet, 28. 5. 7. The Placaat of February 25, 
1751, extends the prohibition to persons of any age (having parents or 
guardians) who have eloped together. 

3 Gr. 2. 16. 6 ; Van Leeuwen, 1. 7. 4 and 3. 3. 10 ; Voet, 28. 2. 
13-14 ; V. d. L. 1. 9. 4. According to Voet the same disability 
attaches to grandchildren ' sive legitimi nepotes sint ex fUio inoestuoso 
sive incestuosi ex filio legitimo ' ; and incestuous parents cannot be 
instituted by their children. As to the question whether in South 
Africa an adulterine child can take under the will of its mother, see the 
affirmative judgment of the Eastern Districts Local Division (Kotze 
J. P. and Graham J.) in Fitzgerald v. Green [1911] E. D. L. D. 432 on 
the one hand, and the negative answer of the Cape Provincial Division 
(Maasdorp J. P. and Searle J.) Fitzgerald r. Green <Se Steytler [1913] 
C. P. D. 403, on the other. The Appellate Division has now answered 
the question affirmatively. A criticism of this decision will be found 
in S. A. L. J. vol. xxxi at p. 139. 

« Nov. 89. 12. 2 (A.D. 539); Voet, ubi sup.; V. d. K. Th. 287. 



300 THE LAW OF SUCCESSION 

who have committed adultery or incest together prohibited 
from taking under each other's will;^ (6) a surviving 
spouse is prohibited from taking under the will of a 
deceased spouse (who was previously married) more 
than the smallest share left by the deceased spouse 
to any cMld of his or her previous marriage ; ^ (7) a 
woman who marries within the annus luctiis prohibited 
from taking anything under her late husband's will ; ' 
(8) a notary prohibited from taking any benefit under 
a will made and passed before him. A like disqualifica- 
tion attaches to any other person who writes a will for 
another and inserts therein a disposition for his own 
benefit ; * and in the modern law to an attesting witness 
of a will ^ who takes, or whose wife or husband takes, a 
benefit thereunder. 

Of the above prohibitions some are certainly, and 
others probably, obsolete in the modern law. But the 

This is still law in British Guiana. In re Evans (1903) Brit. 6ui. Off. 
Oaz. vol. xvlii, p. 1322. 

^ Voet, 28. 5. 6. In British Guiana held by Rayner C. J. and Eam- 
shaw J., dissentiente Dalton A. J. that this is no longer law, principally 
on the ground that adultery is no longer a crime, and an adulterer 
is not, in law, a turpis persona. Bert Ghunkoo v. Beechun (1912) 
Brit. Gui. Off. Oaz. vol. xxxvi, p. 1437. Semble a testamentary gift to 
a concubine holds good. Voet, loc. cit. ; de Haas ad Gens. For. 1. 3. 
4. 41. 

^ Cod. 5. 9. 6 {lex hoc edictali) ; Gr. 2. 16. 7 ; Van Leeuwen, 3. 3. 17; 
Voet, 23. 2. 110 and 28. 5. 6 ; V. d. K. Th. 288 ; V. d. L. 1. 9. 4. The 
lex hac edictali was repealed in Natal by Law No. 22 of 1863, sec. 3 ; in 
Cape Colony by Act No. 26 of 1873, sec. 2 ; in the Transvaal by Procl. 
No. 28 of 1902, sec. 127 ; in the 0. P. S. by the Law Book of 1901, 
chap, xoii, sec. 1 ; in British Guiana by Ord. No. 12 of 1906, sec. 10. 
In Ceylon it seems to be disused. 

^ Cod. 5. 9. 1 ; Voet, 28. 6. 5 ; and the second husband cannot 
take more than one-third of her estate by will. Ibid., sec. 6. But the 
penalties for remarriage within the annus luctus are stated by Van 
Leeuwen to be obsolete. Cens. For. 1. 1. 13. 27. 

* Van Leeuwen, 3. 2. 6 and 3. 3. 15; Voet, 34. 8. 3; Holl. Cons., 
vol. vi, part 2, no. 43 ; Serfontein v. Rodrick [1903], O. R. C. 51. But 
see V. d. K. Th. 292. Quaere, does the prohibition extend to the wife 
or relations of the Notary or other person ? See Nathan, Common Law 
of South Africa, vol. iii, pp. 1811 fi. If the Notary were instituted 
heir the will would at common law have wholly failed, the heir being 
an incompetent witness. 

5 Cape, Act No. 22 of 1876, sec. 3 ; Natal, Law No. 2 of 1868, sec. 7 ; 
Transvaal, Ord. No. 14 of 1903, sec. 3; O. F. S., Ord. No. 11 of 1904, 
sec. 3. 



TESTAMENTARY SUCCESSION 301 

penalty of unauthorized marriages (no. (3) supra) remains 
in force, at all events in South Africa ; ^ and the same 
may be said of the prohibition which stands last in the 
list (no. 8). 

A gift to a person incapable of benefiting under a will 
is taken pro non scripto? 

4. Who may witness a Will. In the Roman Law Who may 
' those persons only can be witnesses who are legally ^ wuT-^ 
capable of witnessing a testament. Women, persons in Roman 
below the age of puberty, slaves, persons deaf or dumb,^ ^^^' 
lunatics, and those who have been interdicted from the 
management of their property or whom the law declares 
worthless and unfitted to perform this office, cannot wit- 
ness a will '.* Persons connected by potestas were incom- 
petent to witness one another's will ; ^ so was the heir 
and those connected with him by potestas, but legatees 
and fideicommissaries were under no such disabihty.® 

Generally speaking, the Dutch Law followed the Roman in the 
Law as regards the capacity and qualification of witnesses.' ™^.^™ 
But in some respects it departed from it. Thus : (1) It 
was unnecessary that the witnesses shoidd be specially 

1 Mostert y. The Master (1878) Buoh., 83. 

^ Grotius (2. 24. 22) says that if the gift is clandestine it is forfeited 
to the fiscus ; but Van der Keessel {Th. 333) following Bynkershoek 
{Quaest. Jur. Priv., lib. iii, cap. ix) excludes the fisc in favour of the 
legitimi heredes. Nowadays the lapsed gift would go to the substituted 
heir or fall into residue. Grotius adds (sec. 23) that gifts to persons 
adhering to the enemy or to outlaws (woesfballingen) are forfeited 
to the fisc. So also Van Leeuwen (3. 3. 9). Groenewegen ad loc. 
dissents. If a beneficiary under a will has : (a) caused testator's death ; 
(6) failed to discover the author of his death ; (c) disputed the will ; 
(d) slandered the memory of the deceased ; (e) after the execution of the 
will entertained a deadly enmity against the testator ; (/) defiled his 
wife ; (g) plundered the inheritance ; (h) in the testator's lifetime 
contracted with regard to the inheritance with a third party — by the 
Roman Law he forfeited the benefit to the fiscus, but not, says Grotius 
[2. 24. 24), to the prejudice of an innocent substitute direct or fidei- 
commissary. Groenewegen (ad loc.) says that, even where there is 
10 substitute, in all these oases an innocent heir is preferred to the 
Ssc. Van der Keessel (Th. 334) comments on the first of the above- 
mentioned cases alone, and says that, though the guilty party could 
lot take, his children might. " Or blind. Voet, 28. 1. 7. 

* Inst. 2. 10. 6 ; Dig. 28. 1. 20. ^ Inst. 2. 10. 9. 

" Inst. 2. 10. 11. ' Van Leeuwen, 3. 2. 8. 



302 THE LAW OP SUCCESSION 

requested to witness the will. It was enough that they 
knew that they were doing so.^ (2) A legatee was not 
a competent witness to an open will ^ notarially executed, 
but to a closed wiU he was.* On the other hand, the 
Dutch Law followed the Roman Law : (a) in requiring 
capacity in the witnesses only at the date of the will ; * 
and (6) in considering a woman * as an incompetent 
witness, as also the heir.^ Further (herein exhibiting 
a greater stringency than the Roman Law), it excluded as 
witnesses persons too nearly related to the heir or testator 
by blood or affinity.'' 

1 Voet, 28. 1. 22. ^ Voet, ubi sup. ; V. d. L. 1. 9. 1. 

^ Voet, 28. 1. 26. Groenewegen, however {ad Inst. 2. 10. 11, sec. 7), 
says in general terms : Etiam hodie legataries et fideicommissarios in 
testamentis testes adhibere a juris ratione alienum puto. Van Leeuwen 
{Cens. For. 1. 3. 2. 6) is to the same effect. Voet refers to the view 
expressed in Holl. Cons., vol. i, no. 103 that (as in English Law) a legatee- 
witness disqualifies only himself, and says that it is altogether erroneous. 
Van der Keessel, however, adopts it {Th. 291), and it is now statutory 
in South Africa {supra, p. 300, n. 5), in Ceylon (Ord. No. 7 of 1840, 
sec. 10), and in Brit. Gui. (Ord. No. 12 of 1906, sec. 7). 

* Voet, 28. 1. 22. 

^ Voet, ibid. ; Groenewegen, de leg. ahr. ad Inst. 2. 10. 6. 

« Gr. 2. 17. 12 ; Joubert v. Uxor, of Bussouw (1877) Buch. 21. 

' Voet, 28. 1. 22 : Nee tales qui heredem institutum nimis propinquo 
sanguinis aut affinitatis vinculo contingunt, ut inde suspectum eorum 
testimonium habendum foret, ita suadente non tam juris civilis 
subtilitate quam potius recta ac naturali ratione. It does. not appear 
that this limitation extends further than to exclude a son from wit- 
nessing, or acting as notary for, a will in which his father is instituted 
and vice versa. Lybreghts, Bedenerend Vertoog over 't Notaris Ampt, 
vol. i, cap. xix, sec. 10 ; Voet, ubi sup. As regards nearness of kin 
to the testator the restriction here mentioned was taken to extend 
to the fifth degree of consanguinity inclusive. Lybreghts, op. cit. 
vol. i, cap. xix, sec. 12 : De Notaris en de getuigen in eenig Testament 
moeten den Testateur niet bestaan in Bloedverwantschap tot in den 
vyfden graad, Z5fnde anderzints reprochabel. Cognati enim et affines 
ad quintum gradum a testimonio prohibentur. See also Holl. Cons., 
vol. iv, no. 245. The authority for this proposition — ^viz. Dig. 22. 5. 4 
— seems altogether insufficient. But the rule was accepted by the 
Cape Court of Appeal in Le Sueur v. Le Sueur (1876) Buch. 153 ; Van 
Nieherk v. Baubenheimer's Exor. (1877) Buch. 51. But see Voet, 22. 4. 5 
and 28. 1. 22. The restriction applied to notarial wills only, not to 
under-hand wills. Semble in the case of under-hand wills the Roman 
Law excluding domesticum testimonium (Inst. 2. 10. 6) was in force in 
HoUand. Voet, 28. 1. 8. 

At the present day in the Cape Province every person above the age 
of fourteen years who is competent to give evidence in a court of law 
is qualified to witness a will. Act No. 22 of 1876, sec. 2. Similar pro- 



TESTAMENTARY SUCCESSION 303 

5. Restrictions on Freedom of Testation. (A) The Legi- Restrio- 
TiM. The Roman Law as early as the time of Ulpian testamen- 
accorded the querela inoflficiosi testament! to three classes ta^y dis- 

position. 

of persons : (1) descendants ; (2) ascendants ; (3) brothers a. The 
or sisters passed over in favour of turpes personae.^ legitim: 
In the latest law descendants were entitled to one-third Law ; 
of their intestate share, if the deceased left four children 
or less, to one-half if he left more than four ; ^ ascendants 
and brothers and sisters were entitled to one-fourth of 
their intestate share.^ Further, descendants * and ascen- 
dants ® must be instituted heirs, though not necessarily to 
the amount of the legitim. If they were not instituted 
(except for good cause) the wiU failed so far as concerned 
the institution of the heir.® The same result followed if 
brothers and sisters (who need not be instituted) took 
nothing under the will.'' In other cases, if the persons 
entitled did not receive their legitim, they had an ' actio 
ad supplendam ' to bring their share up to the legal Hmit.^ 

The general principles of the Roman Law were accepted in Dutch 
in HoUand.® A child, unjustly disinherited or passed '^"^' 

visions in Transvaal (Ord. 14 of 1903, sec. 2), and O. F. S. (Ord. 11 of 
1904, sec. 2), but not in Natal (Nathan, Common Law of South Africa, 
vol. iii, p. 1819). Similar provision in Brit. Gui. (Wills Ordinance • 
(No. 12) of 1906, sec. 6). The Ceylon Law contains no general provision 
as to the competency of attesting witnesses, with the exception of 
Ord. No. 7 of 1840, sec. 9, to the effect that : ' If any person who shall 
attest the execution of any vdll, testament or codicil shall at the 
time of the execution thereof or at any time afterwards be incompetent 
to be admitted a witness to prove the execution thereof, such will, 
testament or codicil shall not on that account be invalid '. 

1 Girard, p. 864. 

2 Nov. 18, cap. i (a. d. 536). 

^ Girard (p. 865) seems to be of this opinion. Others think that 
Justinian intended that parents and brothers and sisters should take 
a third instead of a fourth. Van Leeuwen, 3. 5. 1 ; Cens. For. 1. 3. 4. 12 ; 
Voet, 5. 2. 46 ; Windscheid, vol. iii, sec. 580. 

^ Nov.ll5(A.D.542),cap.iii(aiTOi<.). Fourteen grounds of disherison 
are enumerated in the text, to which the Dutch Law added one more, 
viz. when a daughter under age marries without her parents' consent 
Gr. 2. 18. 13-14. It was not necessary that the child should be 
instituted. A legacy or gift inter vivos was sufficient to satisfy the law. 
Gr. 2. 18. 11 ; Van Leeuwen, 3. 5. 4. 

^ Nov. 115, cap. 4 (ad init.). 

" Ibid., capp. 3 and 4 {ad fin.). ' Voet, 6. 2. 13. 

8 Girard, p. 867. » Gr. 2. 18. 5. 



304 THE LAW OF SUCCESSION 

over by an ascendant/ could upset the will as regards the 
institution of the heir ; ^ but only with effect in the 
absence of a codicillary clause. If such were inserted or 
even implied,* the inheritance must be made over to the 
instituted heirs.* The phrase ' child ' included the issue 
of a deceased child.* If the de cujus was a father, only 
legitimate children could bring the querela ; in the case 
of a mother's wiU the same privilege extended to natural 
issue. ^ The amount of the legitim was the same as in the 
Roman Law.' If the child were left something, he had the 
actio ad supplendam.® A testator might not burden with 
fideicommissum the legitima portio of his children, but he 
might give them the choice of taking either the legitim 
unburdened or their rateable share of the whole iaheri- 
tance subject to fideicommissum.' Parents were not 
allowed to bring the querela unless : (a) they were entitled 
to succeed ab intestato ^^ (which was not always the case, 
for, as we shall see, in South Holland a sole surviving 
parent was entirely excluded) ; and (b) they had not been 
disinherited for good cause.^^ Brothers and sisters, if 
themselves of good fame, might impeach a will in which 
a turpis persona ^^ had been instituted to the extent of 
such institution.-^^ 

1 Gr. 2. 18. 10. 

^ Gr. loc. cit. ; Van Leeuwen, 3. 5. 6 ; Voet, 5. 2. 7. 

' Voet, 29. 7. 7 ; Schorer ad Gr. 2. 24. 7. 

" The praeteritus, however, was entitled, jure civili, to his legitim, 
and by the Dutch Law also to the quarta TrebeUiana, making together 
one-half. Voet, 5. 2. 14 ; 28. 2. 11 ; Sande, Decis. Fris. 4. 2. 2. Van 
Leeuwen's editor agrees (3. 5. 6). So does Van der Keessel (Th. 307). 
But Decker {ad Van Leeuwen, 3. 4. 6 and 3. 5. 6) protests loudly. The 
effect seems to be, as stated by Van der Keessel {Th. 332), to leave the 
will otherwise imdisturbed. 

= Gr. 2. 18. 6. " Gr. 2. 18. 7. 

' Gr. 2. 18. 8. 8 (Jr. 2. 18. 10. 

9 V. d. L. 1. 9. 8. w V. d. K. Th. 308. 

^1 Nov. 115, cap. iv ; Gr. 2. 18. 15-6. Justinian gives eight grounds 
of disherison which Grotius recounts. 

^2 Van Leeuwen says (3. 4. 9) : ' Infamous persons are considered to 
be not only those who have by sentence been declared such, but also 
those whose conduct is such that they are generally reputed not to be 
honest persons.' 

1= Gr. 2. 18. 17 ; Voet, 6. 2. 9. The plaint might be brought by 
germani and consanguinei, but not by uterini. Girard, p. 864. 



TESTAMENTARY SUCCESSION 



305 



In British Guiana the right of children to their legiti- 
mate portion, is expressly saved by statute.^ In the 
other Colonies the legitimate portion and the law relating 
thereto have been abolished,^ in South Africa expressly, 
in Ceylon (semble) by impHcation. 

(B) QuARTA Falcidia. In Dutch, as in Roman, law, 
the heir is entitled to retain, as against legatees, a clear 
fourth of the estate or of the share in which he is instituted 
after payment of funeral and other expenses and debts ; 
the legacies are, if necessary, reduced pro rata. But this 
law has no appUcation: (1) if expressly excluded by the 
testator;* (2) against legacies to hospitals (Oodshuizen) 
or to the poor ; (3) if the legacy is accompanied by a pro- 
hibition against ahenation, i. e. charged with a fideicom- 
missum over to a third party ; (4) to soldiers' wills ; (5) if 
the heir delays to carry out the will or to make an inven- 
tory in case he has obtained the beneficium inventarii.* 

(C) Qtjarta Trebblliana. The principle of the Lex 
Falcidia was appUed by later legislation to the relation of 
fiduciary and fideicommissary. We shall deal with this 
topic in a later section. 

Both the Falcidian and the Trebellian portions have 
been abohshed in the Colonies.* 

6. Institution and Substitution of Heirs. It is unnecessary 
to linger over the rules relating to this topic, which 
Grotius ® and other writers have taken over in detail 

^ Deceased Persons' Estates Ordinance (No. 9 of) 1909, sec. 4. 

2 Cape, Act No. 23 of 1874, sec. 2 ; Natal, Law 7 of 1885, sec. 1 ; 
O. F. S. Law Book of 1901, cap. xcii, sec. 3 ; Transv. Prool. No. 28 
of 1902, sec. 128. There is no express abolition in Ceylon, as pointed 
out by the late Mr. Justice Thomson {Institutes of the Laws of Ceylon, 
vol. ii. p. 208) ; but see Ord. No. 21 of 1844, sec. 1. 

^ Or when a gift inter vivos has been made with the express intention 
of excluding the Falcidian portion. Dig. 35. 2. 56. 5 ; Voet, 35. 2. 10. 

* Gr. 2. 23. 20 ; Van Leeuwen, lib. iii, cap. xi ; Voet, 35. 2. 11 ff. 
But the Dutch Law, unlike the Roman, did not refuse the Falcidian 
portion to an heir who did not formally claim the benefit of inventory. 
V. d. K. Th. 324. 

^ Cape, Act 26 of 1873, sec. 1 ; Natal, Law 7 of 1885, sec. 2 ; Transv. 
Procl. No. 28 of 1902, sec. 126 ; O. F. S. Law Book of 1901, cap. xcii, 
sec. 2 ; Brit. Gui. Ord. No. 12 of 1906, sec. 9. As to Ceylon there may 
be some doubt. Thomson, Institutes, vol. ii, p. 225. 

° Gr. lib. ii, capp. xviii and xix. 

1713 X 



in the 

modern 

law 

abolished 

except in 

British 

Guiana. 

B. The 

Falcidian 
portion. 



C. The 

Trebellian 

portion. 



Institu- 
tion and 
substitu- 
tion of 
heirs. 



306 THE LAW OF SUCCESSION 

from the Roman Law. As observed above, the institution 
of an heir is no longer necessary to the validity of a testa- 
ment. Vulgar substitution is the same as in the Roman 
Law.^ Pupillary and exemplary substitution in the 
Roman sense are not in use,^ the same result being suffi- 
ciently obtained by fideicommissa.* Two particular 
departures from the Roman Law may be noticed : first, 
that an institution subject to an impossible condition, is 
commonly regarded as not seriously intended and there- 
fore void ; * secondly, that an institution a die or in diem 
is good, the effect being to shift the property from the 
intestate heir (institutio a die) or to the intestate heir or 
substituted heir named by the testator (institutio in diem)} 
Accept- 7. Acceptance or Repudiation of the Inheritance- Con- 
repudia- trary to the Roman Law, no one need accept unless 
tionof he pleases.* Descendants may refuse without bene- 
tance. ficium abstinendi. Every heir may either : {a) accept 
unconditionally ; or (6) accept with benefit of inventory ; 
or (c) claim fepatium deliberandi ; or {d) refuse.' Mar- 
ried women cannot accept without the consent of their 
husbands. Guardians accept for their wards. Accep- 
tance or refusal may be indicated by words or by conduct.^ 

1 V. d. L. 1. 9. 7. 

2 Voet, Compendium, 28. 6. 16 ; Van Leeuwen, 3. 7. 5 ; V. d. K. Th. 
106. But Van der Keessel (Th. 312) and Van der Linden (1. 9. 7) admit 
exemplary or quasi-pupillary substitution. See BecMsg. Obs., pt. i, 
no. 41. 

^ Or, says Van der Linden, by verkiezing van het landrecM (Gr. lib. ii, 
cap. xxix), which bears some analogy to pupillary substitution. Of. 
V. d. K. Th. 360 ff. 

* Gr. 2. 18. 20. Voet (28. 7. 16) dissents. Van der Keessel {Th. 310) 
agrees with Voet. 

5 Gr. 2. 18. 21 ; V. d. K. Th. 311 ; and see Th. 106. 

* Voet, Compendium, 29. 2. 14. 

' Gr. 2. 21. 2. Grotius (2. 21. 4) and Voet (28. 8. 2) allow a year for 
deliberation ; but Van der Linden (1. 9. 10) says that it lasts only so 
long as the creditors choose to wait, as they have the right of compelling 
the heir to accept or repudiate the inheritance. In South Africa 
(Cape Province) ' the Act of Deliberation is wholly in disuse and there 
is not a recorded case, at all events after the passing of the Ordinance 
No. 104 (1833), of any application to the Court for the writ of benefit 
of inventory '. Fischer v. Liquidators of the Union Bank (1890) 8 S. C. 
at p. 52, per de Villiers C. J. In British Guiana the spatium deUbe- 
randi was limited to six months by Ord. No. 8 of 1838 and abolished 
by Ord. No. 9 of 1909, sec. 9. » Gr. 2. 21. 3 and 5. 



TESTAMENTARY SUCCESSION 307 

Acceptance or refusal once made cannot be recalled except 
)y minors, who may sue for restitutio in integrum.^ If 
m heir to whom an inheritance has been delated dies 
)efore acceptance, the right of acceptance passes to the 
lead man's heirs, or may be disposed of by his will.^ In 
Holland the benefit of inventory was by no means granted 
is of course, but only on appUcation to the Sovereign 
)r to the Hooge Raad, and not in case a substituted heir 
yas willing to accept unconditionally.^ 

8. Legacies. In regard to the creation and interpreta- Legacies. 
ion of legacies, the rules of the Roman Law are closely 
'oUowed. We may be content on this topic to refer to 

ihe usual sources of information.* 

9. Codicils. In Roman Law, codicils were informal Codicils. 
iocuments in the nature of notes or memoranda contain- 

ng directions from the deceased to his heir testamentary 
)r intestate. In Justinian's legislation they were gener- 
lUy executed in writing by the maker,^ in the presence of 
it least five witnesses, male or female,* who added their 
signatures. ' Though as regards form, therefore, they fell 
ittle short of regular wills, in several respects they differed 
'rom them. Thus : (a) they could not dispose of the 
nheritance, and therefore could not institute or sub- 
ititute an heir (directly), nor contain a clause of disheri- 
lon.* On the other hand : (6) their vahdity did not 

1 Gr. 2. 21. 6. 2 V. d. K. Th. 321. 

" Gr. 2. 21. 8-9. For the formalities required see Gr. loo. cit., 
BCS. 10-11. 

* For the treatment of the topic by the Roman-Dutch writers see 
tr. lib. i, capp. xxii and xxiii ; Van Leeuwen, lib. iii, cap. ix. 

^ He need not sign. Voet, 29. 7. 1. They might also be nuncupative, 
led. 6. 4. 3. pr. 

« Gr. 2. 25. 2 ; Voet, ubi sup. 

' God. 6. 36. 8. 3 : In omni autem ultima voluntate exoepto testa- 
lento quinque testes vel rogati vel qui f ortuito venerint in uno eodem- 
ue tempore debent adhiberi, sive in soriptis sive sine soriptura 
oluntas conficiatur, testibus, videlicet, quando scriptura voluntas 
amponitur subnotationem suam accommodantibus. 

' Inst. 2. 25. 2 ; V. d. L. 1. 9. 2. Van der Linden says further 
fiat a will can never be contained in an under- hand instrument whereas 

codicil may, if the testator has in his will reserved to himself this 
ower by the' clausule reservatoir. But this must be understood subject 
3 the law relating to the testamentum parentis inter liberos. 

X2 



308 



THE LAW OF SUCCESSION 



Does the 
distinc- 
tion 
between 
wills and 
codicils 
exist in 
the 

modern 
law? 



depend upon the institution of, or the acceptance of the 
inheritance by, a testamentary heir — if there were none 
such, the codicils still remained in force and bound the 
heres ab intestato ; (c) they might be made either before 
the wiU or after the will or in the absence of any will ; 
{d) though a man could only leave behind him one valid 
will, he might leave any number of valid codicils.^ 

Any one might make or take under a codicil who could 
make or take under a will.^ 

Owing to the greater elasticity of the codicil, and the 
Habihty to failure of the formal will, it became usual 
among the Romans to insert in every wiU a clause pro- 
viding that if the instrument failed to take effect as a will 
it should take effect as a codicil. This was called the 
clausula codicillaris. It cured defects of form but not of 
substance, and even the first only if the form satisfied 
the requirements of the law in case of codicils.* 

The Dutch jurists discuss at some length whether there, 
was any longer any difference between wills and codicils.* 
Voet says : ' The law of codicils has been very nearly 
assimilated to that of testaments, and so not merely do 
codicils demand the same solemnities as wills, but also 
anything can be done by way of codicils that can be done 
by way of will, such as a direct institution or disherison. 
From wliich it follows that a woman cannot witness 
a codicil any more than a will . . . and that the failure 



1 Inst. 2. 25. 3. 

2 Dig. 29. 7. 6. 3 ; Voet, 29. 7. 2 ; Girard, p. 923. 

^ Gr. 2. 24. 7. Grotius says also that a will in which an heir is not 
instituted takes effect as a codicil by virtue of the codicillary clause. 
But even in the absence of such a clause the will held good. Van 
Leeuwen, 3. 2. 2, and Decker ad loc. Decker is wrong in saying that 
Voet lays down (29. 7. 7) that the codiciallary clause is always implied. 

* Grotius simply follows the Eoman Law with the addition (2. 25. 3) 
that ' With us codicils are commonly made (like wills) before two 
members of the Court and the Secretary, or before a notary and two 
witnesses'. Groenewegen says {de leg. ahr. ad Inst. lib. ii, tit. 25): 
Inter testamenta et codioiUos nullam hodie diiferentiam agnoscere 
licet. Decker ad Van Leeuwen (3. 2. 2) argues with much force that the 
Roman law of codicils is entirely foreign to the law of Holland. Van 
der Keessel {Th. 289) speaks of existing differences between wills and 
codicils. 



TESTAMENTARY SUCCESSION 309 

of the will does not involve the failure of the codicils '.^ 
Van Leeuwen observes ^ that since two wills cannot 
co-exist,* if a testator has left two wills behind him the 
second invaUdates the first, unless the intention is indi- 
cated that the first should take effect as codicil. At the 
present day the difference between wills and codicils 
seems, as in Enghsh law, to be one of name merely, and 
not of substance. 

10. How Wills and Legacies are Revoked.* A wUl, vahdly Revoca- 
made, may be revoked: (1) by a subsequent wiU,^ unless ^i°g°^ 
the intention is expressed or implied to keep the first will 
aUve ; ^ revocation may take place even though no one 
accepts the inheritance under the second wiU ; a testa- 
ment parentis inter hberos must be revoked in solemn 
form,' unless the second testament itself contains only 
a disposition inter liberos ; * 

(2) by declaration of intention to revoke ; ® if the 
institutus was a stranger, this may be done with 
the formalities necessary to a codicil ; otherwise, with 
the f ormaHties proper to a will ; in the case of a closed 
notarial will a revocation, endorsed on the will and signed 

^ Voet, 29. 7. 5 : neo corruere codioillos corruente testamento, e. g. 
if the instituted heir does not take up the inheritance. See also Voet, 
36. 1. 6. 

2 Gens. For. 1. 3. 2. 2. Of. Gr. 2. 24. 11. 

^ But they can, as Van Leeuwen himself observes lower down {Gens. 
F<yr. 1. 3. 11. 9), and Voet (28. 3. 8), and Decker, vbi sup. 

* For Natal Law see Law 2 of 1868, sees. 8-10 ; for Ceylon, Ord. 
No. 7 of 1840, sec. 5. 

5 Gr. 2. 24. 9. 

« Gr. 2. 24. 11 ; V. d. K. Th. 329. But Voet (28. 3. 8) says that 
there must be an express revocation of the earlier will, otherwise 
effect is given, so far as they are not irreconcilable, to both. Sohorer 
ad Gr. (loc. cit.) agrees ; so does Groenewegen (de leg. abr. ad Inst. 
2. 17. 3). Van Leeuwen (3. 2. 17) says that the second testament 
would be considered as a codicil except in so far as it contains a general 
or special revocation of the first wUl. Van der Liaden (1. 9. 11) seems to 
agree with Grotius. Munniks (vol. ii, p. 136) follows Voet. 

' Gr. 2. 24. 18 ; V. d. K. Th. 331 ; but a general declaration of 
revocation (in proper form) suffices. Van Leeuwen, 3. 2. 18. 

' Schorer, ad Gr. ubi sup. 

» Gr. 2. 24. 16-7, and Groenewegen, ad loc. ; Voet, 28. 3. 1 ; V. d. L. 
1. 9. 11. See the contrary views expressed by four members of the 
Frisian Supreme Court on the one side, and by three professors of 
Louvain on the other, in Holl. Gons., vol. v, no. 16. 



310 THE LAW OF SUCCESSION 

by a notary and two witnesses, will deprive the original 
of its eflect ; ^ 

(3) by destruction animo revocandi ; ^ 

(4) by marriage, followed by birth of issue.* Grotius 
says further, that a will is revoked by a declaration to 
the Court {inter acta), or made before three witnesses, 
that the testator does not desire his will to stand, pro- 
vided that ten years have elapsed since the date of its 
execution.* This piece of Romanism finds no place in the 
modern law. 

By the Civil Law a will was always liable to fail, owing 
to non-acceptance of the inheritance. But in the modem 

1 Voet, 28. 3. 1, and Holl. Cons., vol. v, at pp. 87 ff. 

2 Gr. 2. 24. 16 ; Voet, 28. 4. 1. If the will has been executed in 
duplicate it is a question of intention whether destruction of one 
duplicate destroys the effect of the other {Nelson v. Currey (1886) 
4 S. C. 355). The destruction of the copy or grosse of a notarial will 
has no effect (at all events it the will was orally pronounced and taken 
down in writing by the notary). So say Voet {vbi sup.) ; Groenewegen 
(adGr.ubisiip.); VanLeeuwen(3. 2. 17); and Van der Linden (1.9. 11). 
To the same effect is Holl. Cons., vol. iii, pt. 2, no. 156, with which 
agrees Neostadius, Decis. van den Hove, no. 1. The opinion in Holl. 
Cons., vol. i, no. 109 is directly contrary. Van der Keessel says {Tk. 330) : 
Deleto testamenti exemplo (de Grosse) quod testator adservat, non 
rumpitur exemplar (de Minute) quod in protoooUo Notarii invenitur, 
nisi probetur testatorem delevisse, ut intestatus deoederet. Partial 
destruction, it intentional, prima facie only revokes the part destroyed. 
Voet, 28. 4. 3. But cutting the strings or breaking the seals of a closed 
will destroys the whole. V. d. L. itSi sup. 

' Van der Linden seems to be the only authority for this statement, 
which rests upon the assumption that the birth of a postumus renders 
the wUl void. See V. d. K. Th. 306. But does it ? In the modern 
law praeteritio is regarded as tacit disherison (Voet, Compendium, 
lib. xxviii, tit. 2 {ad fin.)), with the result that the testament is treated 
as inofficious (Voet, 5. 2. 7), and the praeteritus comes in to the extent 
of his legitim, as it expressly disinherited. Even Voet, who seems to 
have suggested to Van der Linden the view expressed in the text, does 
not profess that the birth of a postumus always avoids the will, but only 
when the father, having no other children, has in ignorance of the fact 
that his wife was with ohUd instituted a stranger (Voet, 5. 2. 17). The 
opinion in Holl. Cons., vol. iv, no. 21 is to the same effect. In Natal, by 
Law 2 of 1868, sec. 8, a will is (subject to some exceptions) revoked 
by marriage. In the other provinces {semble) this is not so. In Ceylon 
(Ord. No. 7 of 1840, sec. 5) a will is revoked by marriage. The Brit. Gui. 
Wills Ord. of 1906 has nothing to say on the subject of revocation. 

^ Gr. 2. 24. 14. This is taken from Cod. 6. 23. 27. See Holl. Cons., 
vol. i, no. 89. Groenewegen {de leg. abr. ad loc.) doubts. Sohorer, 
(asd: Gr. loo. cit.) dissents: 'moribusvixadmitti potest'. Van Leeuwen 
(3. 2. 17) admits it without comment. 



TESTAMENTARY SUCCESSION 311 

law, which, as we have seen, dispenses with the institution 
of an heir altogether, the non-acceptance of the inheritance 
by the instituted heir is not allowed to operate to the 
prejudice of legacies,^ which must be duly paid by the in- 
testate successors,^ or, if there are none such, by the 
fisc. The result is the same if the testator has erased 
the names of the heirs without intending thereby to 
revoke the whole will.* 

Legacies in particular are extinguished : Kevoca- 

(1) if expressly revoked by will or codicil ; * tionof 

'■ ' r J J legacies. 

(2) if impliedly revoked, which happens if the subject- 
matter of the legacy is given away or (except under stress 
of necessity) sold ; * 

(3) if the legatee dies before the testator, or before the 
condition (if any) of the legacy has been implemented ; " 

(4) by erasure, &c., in the will animo revocandi.' 

11. Fideicommissa. The student who derives his know- Fideioom- 
ledge of Roman Law at first or second hand from the j^'Ro^an 
Institutes of Gains and Justinian, may be supposed to be Law, 
familiar with the origin and history of fideicommissa, as 
made known to us in those works. He has learnt that 
the fideicommissum owed its beginning to the cumbersome 
technicahties of the Roman system of testamentary suc- 
cession, and, in particular, to the fact that none but 

^ Schorer (ad Gr. 2. 24. 19) attributes this consequence to the 
codiciUary clause ; but the insertion of this clause is certainly not 
necessary to-day. 

^ Voet, 28. 3. 14 ; who says : quod et moribus nostris conveniens est 
propter clausulam codiciUarem testamento addi solitam. But (semble) 
the same result follows even in the absence of such clause. V. d. L. 
1. 9. 11. 

» Voet, 28. 4. 3. 

* Gr. 2. 24. 27 ; Voet, 34. 4. 3. 

= Gr. 2. 24. 28 ; Voet, 34. 4. 5-6. Grotius, following Dig. 34. 4. 3. 11 and 
lex 4, adds 'serious enmity between testator and legatee.' Groenewegen 
doubts {de leg. abr. ad Dig. lib. xxxiv, tit. 4). Voet (34. 4. 5) affirms 
and extends the principle. According to Grotius (2. 24. 27) a legacy 
may be revoked by a declaration before two witnesses — sed quaere. 
Van der Keessel says {Th. 335) that a legacy may be revoked by 
a marginal note in the grosse or copy of a notarial will signed by the 
testator. See Holl. Cons., vol. v, no. 45. 

^ Gr. 2. 24. 29, and Schorer, ad loc. ; Voet, 34. 4. 9. 

' Gr. 2. 24. 27. 



312 THE LAW OF SUCCESSION 

Roman citizens ^ could be validly instituted as heirs. But 
he may sometimes have wondered why the fideicommis^ 
sum retained its importance in a later age, when the 
codicil (which was the usual vehicle of the fideicommissum) 
so far as form went was little less technical than the 
formal testament ; and when, as a rule, the classes 
disqualified from taking by will were equally disqualified 
from taking by way of fideicommissum.^ 

It is possible that it may hardly have occurred to him 
that the great part which the fideicommissum played in 
the Roman Law was due, not merely, and perhaps not 
principally, to the fact that it afforded an escape from the 
fetters of form, but much more to the fact that it supplied 
an easily adaptable method of tying up property through 
employed successivo generations. The fideicommissum of the jus 
property ^^^^^ ^^^ ™ ^^^^ ^^^ equivalent of what English lawyers 
call a settlement.* When, therefore, we read the well- 
Imown formula : ' Be Titius my heir, and let him restore 
the inheritance to Maevius ', we must remember that, to 
aid our comprehension, the situation is presented, as it 
were, m vacuo. In practice it is highly probable that the 
direction would be that Titius should hand over the estate 
at his death, or, perhaps, after the lapse of a fixed time 
or on the occurrence of some certain or imcertain future 
event. In the first case, Titius takes what an English 
lawyer would describe as a life-estate with remainder to 
Maevius ; in the other cases he takes the ownership 
subject to an executory limitation over in favour of 
Maevius. Perhaps the latter phrase suggests a better 
analogy in the first case also ; for the Roman Law knew 
nothing of any doctrine of ' estates '. There was no half- 
way house between dominium and servitude. If you 
were not dominus you had merely a jus in re aliena. To 
speak of a man as owner for life is to use a phrase which, 

^ And Latins. Girard, p. 110. Gaius, ii. 285: Peregrini poterant 
fideicommissa capere : et fere haeo fuit origo fideicommissorum. 
2 Girard, p. 923. 
^ See examples in Hunter, Roman Law, p. 823. 



commisHa 



TESTAMENTARY SUCCESSION 313 

to the Roman lawyer, would have been unfamiliar and 
inartistic, if not positively incomprehensible. 

It is not unusual to describe fideicommissa as testa- Fidei- 
mentary trusts.^ Passing by the objection that they were °^^ 
frequently intended to take effect upon an intestacy, we trusts. 
may remark that, to apply the terms of art proper to one 
system of law to another system in which they are not at 
home, is always dangerous and often misleading. The 
differences between the trust and the fideicommissum 
are fundamental. Thus : (1) the distinction between the 
legal and the equitable estate is of the essence of the trust ; 
the idea is foreign to the fideicommissum ; (2) in the 
trust, the legal ownership of the trustee and the equitable 
ownership of the beneficiary are concurrent, and often 
co-extensive ; in the fideicommissum the ownership of 
the fideicommissary begins when the ownership of the 
fiduciary ends ; (3) in the trust, the interest of the bene- 
ficiary, though described as an equitable ownership, is 
properly ' jus neque in re neque ad rem ' ; ^ against the 
bona fide alienee of the legal estate it is paralysed and 
ineffectual ; in the fideicommissum the fideicommissary, 
once his interest has vested, has a right which he can make 
good against all the world, a right which the fiduciary 
cannot destroy or burden by alienation or by charge ; ' 
(4) a further difference, more familiar perhaps but not 
more important than the others already mentioned, is 
that while a trust is created as often by act inter vivos as 
by last win, in the Roman Law a fideicommissum always, In the 
or almost always, took effect mortis causa by virtue of j^wTdei- 
a testament or codicil ; Voet,* indeed, and other writers commissa 
say that a fideicommissum could also be created by act took 
inter vivos ; but the passages from the Corpus Juris f^lll°^ 

1 E. g. Hunter, p. 809. 

2 Chvdkigh's case (1589) 1 Co. Rep. at 121 b. 

3 Cod. 6. 43. 3. 3; Voet, 6. 1. 6; 18. 1. 15; 36. 1. 64; V. d. L. 1. 9. 8. 
The Roman Law on this point is clear, but the Courts in South Africa 
and Ceylon have shown a very strong disposition to refuse relief 
against a bona fide purchaser for value. See Larige v. Lieschtng (1880) 
Foord at p. 59. 

* Voet, 36. 1. 9 ; Vinnius, Tract, de pact., oa.p. xv, nos. 11 and IZ. 



314 THE LAW OF SUCCESSION 

but in cited in support of this view are neither numerous nor 

La^^^X^ convincing.^ In the law of Holland it was otherwise. 

be created Though the books have little to say on the subject, it is 

intCT clear that fideicommissa were created by ante-nuptial 

VIVOS. settlement or other act inter vivos} As to the modem 

law there can be no question. If we deny this we shall 

hardly find a place in any existing system of Roman-Dutch 

Law for the trusts which, made familiar by settlements 

framed upon English models, have invaded the Courts 

Fidei- and even the statute book. Implied and constructive 

in tlS'^^'^ trusts no less than express trusts have been recognized 

modern as an institution of the Roman-Dutch Law of the present 

day." But a development which no doubt is necessary, 

if the legal system is to keep pace with the rationes vitae 

of modem times, is certainly attended by difificulty. A 

doubt may arise whether the circumstances which in a 

given case raise a trust in the law of England will equally 

raise an implied fideicommissum in the Roman-Dutch 

Law. A still more fundamental question relates to the 

1 Dig. 16. 3. 26. pr. ; Dig. lib. xxxii, lex 37. 3 ; Cod. 3. 54 (55). 3; 
Dig. lib. XXX, lex 77. The last-cited passage contains the words: Abomni 
debitore fideicommissum relinqui potest, i.e. every debtor may be charged 
with a fideicommissum. But such a f.c. falls short of a f.c. in the 
full sense, if Voet and Vinnius are, right in saying that it gave rise to 
a personal action merely, not to a vindication. All that the passage 
last cited from the Digest means is that a debtor may be directed to 
make payment to a third party, and if he does so may repel a claim by 
his creditor's heir. 

^ 1 1 seems that they were recognized to have the same effect as fideicom- 
missa arising mortis causa. By a Placaat of the States of Holland and West 
Friesland of July 30, 1624 (1 G. P. B. 375), all fideicommissa or pro- 
hibitions of alienation affecting immovable property were to be destitute 
of effect unless registered. But this Placaat, as Voet tells us (36. 1. 12), 
was never introduced into practice and so became obsolete. Rechtsg. 
Obs., pt. i, no. 42 ; V. d. K. Th. 319. For the law requiring registration 
in Utrecht see Abraham h. Wesel, Oomment. ad Nov. Constit. Ultraject., 
Art. 22. For an early case, in the modem law, of fideicommissum 
created by ante-nuptial contract see Buisinne v. Mulder (1835) 1 Menz. 
162. See also Du Plessis v. Estate Meyer (1913) S. A. L. J., vol. xxxi, 
p. 184. Fideicommissa created by act inter vivos are even more strictly 
construed than fideicommissa created by testament. Hall. Cons. , vol. iii, 
pt. 2, no. 111. 

^ See the very able judgment of Mr. Berwick in the District Court 
of Colombo confirmed by the full Court in Appeal in Ibrahim Saibo v. 
Oriental Bank Corporation (1874) 3 N. L. R. 148. 



TESTAMENTARY SUCCESSION 315 

effect of the trust in the modern law. The Colonial Courts 
have manifested a strong inclination to ' receive ' into the 
law the English theory of trusts with all the consequences 
of the distinction between the legal and the equitable 
estate.^ 

Since all the text-books of the Roman-Dutch Law follow Method 
the Roman Law in their treatment of fideicommissa, it ^entf 
wiU be convenient to pursue the same method, and to 
regard the fideicommissum primarily as a mode of testa- 
mentary substitution which derives its importance from 
its utility as a means of tying up property through suc- 
cessive generations.^ The student will find no difficulty 
in applying the rules which we shall proceed to state, to 
dispositions inter vivos as well. 

No particular form of words is needed for the creation No form 
of a fideicommissum. All that is required is that the recmired 
testator's meaning should be clearly expressed or implied,' to create a 
for the law is unfriendly to fideicommissa and will not missum. 
lightly presume in their favour.* An express fideicom- Mdei 
missum is created by such words as these : ' I make my 
wife my heir, but when she comes to die I desire that she («) ex- 
wUl let the property go to those who shall be then nearest 
to me in blood ' or to certain named persons.* An 
imphed fideicommissum is created in many ways, for (6)im- 
example, by prohibition of alienation.^ But such a clause ^ ' 
is strictly construed, and is never allowed to be good Effect of 
unless some person is named or clearly indicated as the tjj,„ o/' 
person for whose advantage the prohibition is imposed.' alienation 
Thus, a general prohibition of alienation is not upheld. 
But a prohibition of alienation followed by a gift over 

1 Cf. Lange v. Liesching (1880) Foord at p. 58. 

^ Huber, Hedensd. BecMsg. (2. 19. 5) says : ' Schier altoos valt de 
beswarenisse heedensdaegs niet anders op den eersten erfgenaem als 
om nae sijn doodt de goederen over te dragen.' But sometimes the 
fiduciary plays the part of a ' bare trustee '. Ibid. sec. 11. 

" Van Leeuwen, 3. 8. 4 ; V. d. L. 1. 9. 8. 

* Voet, 36. 1. 72 ; Huber, op cit. 2. 19. 76-7. 

= Huber, 2. 19. 37. 

8 Van Leeuwen, 3. 8. 6 ; Huber, 2. 19. 53. 

' Gr. 2. 20. 11 ; Voet, 36. 1. 27 ; Huber, 2. 19. 54. 



oommissa 
are : 



316 



THE LAW OF SUCCESSION 



Fideioom- 

missum 

residui. 



Condi- 
tional 
fideicom- 

miasa. 



upon the death of the first taker creates a fideicommissum 
in favour of the person indicated as successor. If the 
heir is forbidden to alienate the property out of the family 
the law raises a fideicommissum in favour of the intestate 
heirs/ so that the heir is not free to dispose of the property 
either by act inter vivos or by will.^ Such was the effect in 
Holland generally. But in Amsterdam a proviso of this 
nature was almost destitute of effect ; for it was construed 
as merely prescribing the course of descent in respect of 
so much of the property as the heir had not alienated 
inter vivos or disposed of by his testament.^ 

Nearly, but not quite, the same freedom of alienation 
is enjoyed by the heir who is given power to diminish or 
waste the property, with a direction to make over the 
residue to some person named by the testator {fideicom- 
missum residui).^ In this case the heir may freely dispose 
of three-quarters ^ of the estate, leaving one quarter only 
to the fideicommissary ; if he has alienated more than 
three-quarters, the goods last alienated may be followed 
into the hands of the alienee. 

Very often the fideicommissum depends upon a con- 
dition, as where a wife is appointed heir with a gift over 
in the event of remarriage : e.g. ' I appoint my wife Jane 
my heir ; but, if she marries again, I desire her to make 
over the property to my brother Henry ' ; or when a son 



^ I.e. of the last possessor (usually), not of the settlor. Huber, 
2. 19. 68. 

2 Gr. 2. 20. 12 ; Voet, 36. 1. 27 fi. ; Josef v. Mulder [1903] A. C. 190. 
Huber (sec. 59) says that if the direction is that the property is not to 
be alienated out of the family the fiduciary may leave it by will to any 
one of the family near or remote. Secus, if the property is left to the 
family (gemaekt aen het geslachte). 

3 Gr. M6i sup. ; Voet, 36. 1. 5. See V. d. K. Th. 318. 

1 Gr. 2. 20. 13 ; Van Leeuwen, 3. 8. 9 ; Huber, 2. 19. 103 ; V. d. K. 
Th. 320. The same result follows when a usufruct with a power of 
alienation has been left subject to a condition that the property should 
be restored after death. V. d. K. Th. 372. 

^ Grotius says one-fourth ; but this is a slip corrected in Groene- 
wegen's and later editions. In certain cases he might dispose of the 
whole, viz. ex causa dotis seu propter nuptias donationis seu captivorum 
redemptionis vel si non habeat unde faciat expensas. Nov. 108, cap. 1 
(a. d. 541) ; Authentica ad God. 6. 49. 6. 



TESTAMENTARY SUCCESSION 317 

is appointed heir with a gift over in the event of his dying 
under the age of five-and-twenty.^ But the commonest 
condition of all is that which provides that the goods are 
to go over if the first taker dies without children. The 
formula is something of this Mnd : ' If my heir dies 
without children I will that he shall let the property 
which comes to him from me go to my nearest of Idn then 
in being '. The effect is that the gift over is only realized 
in case the heir leaves no legitimate children surviving him 
at the date of his death.^ 

If the clause si sine liberis decesserit was expressly The 
inserted as the condition of a gift over taking effect, and "g^fine 
the first taker had children who siu-vived him, the gift liberis de 
over would certainly fail ; but whether a fideicommissum 
would be implied in favour of the children was disputed. 
Grotius says that a negative answer is commonly given 
unless the testator was an ancestor, or the children are 
themselves charged with a fideicommissum, or from other 
circumstances it appeared that the testator intended that 
they should benefit imder his will.* 

If however the testator was an ancestor, not only does 
the above-mentioned clause create a fideicommissum in 
favour of the children, but even if the clause has been 
omitted it will be read into the will with the same result. 
For if an ascendant confers a benefit by his wUl upon a 
descendant who was childless at the date of the wUl, with 
an unqualified gift over in the event of such descendant's 
death, none the less, if, at the date of his death, such 
descendant leaves children surviving him, a fideicommis- 
sum will be implied in their favour, in derogation of the 
express fideicommissum contained in the testator's will.* 

1 Huber, 2. 19. 44. ^ Voet, 36. 1. 13 ff. ; Huber, 2. 19. 45-6. 

^ Gr. 2. 20. 5 ; Huber, 2. 19. 30. I institute my brother; if he dies 
without children, the property to go over to my nephew. This does 
not create a f.c. in favour of the brother's children. Ibid. sec. 65. 
Voet (39. 5. 44) observes : Nititur scilicet tota quaestionis hujus 
definitio ex determinatione controversiae, an positi in conditione 
censeantur etiam positi in dispositione. See also Van Leeuwen, 3. 8. 12. 

* Voet, 36. 1. 17 ; Huber, 2. 19. 49. See GalUers v. Rycroft [1901] 
A. C. 130. It was held in this case that in Roman-Dutch Law, differing 



318 THE LAW OF SUCCESSION 

The effect In the Roman Law it was the duty of the fiduciary to 
commis- ' restore ' the property to the fideicommissarius either 
sum as forthwith or upon the vesting of the fideicommissum. 
thf ^Jwner- The texts of the Corpus Juris leave us in some uncertainty 
?!?'P°* as to what was required to constitute restitution. Prima 

the pro- ^ . , „ . 

perty fade the property in question vests m the first mstance 
subj^ect ^ ^YiQ fiduciary, as heir or legatee, by title of inheritance 
or legacy ; and it would appear that some act of restitu- 
tion — delivery or its equivalent — ^was necessary to vest 
the property in the fideicommissary.-^ But Justinian put 
fideicommissa and legacies on an equal footing, and gave 
to all legatees the real action which, before his time, had 
been limited to legatees by vindication.^ As regards res 
singulares, at all events, the effect would be to vest the 
property in the fideicommissary eo instanti that the 
fideicommissum matured. In the modern law it would 
seem reasonable to infer the same result in every case of 
Parallel fideicommissum. If this be so, the true parallel in Engfish 
English Law to the fideicommissum is not the trust but the grant 
'^^- to uses under the statute. If the fideicommissum is 
expressed to take effect at once, the fiduciary wiQ be 
a conduit-pipe to convey the property to the beneficiary. 
If, on the other hand, the vesting of the fideicommissum 
is postponed, the fiduciary will be in the position of an 
owner in fee simple subject to an executory limitation 
over to another. Upon the happening of the contem- 
plated event the ownership will shift over to the fideicom- 
missary. If the terms of the fideicommissum involved 
active duties in relation to the property, the case would, 
no doubt, be different. In such a case an actual convey- 
ance would be necessary to transfer the property to the 
fideicommissary owner. 

in this respect from Scots Law, the clause ' si sine liberis decesserit ' is 
implied in case of fideicommissary substitution only, and not also in 
case of direct substitution. 

1 Dig. 36. 1. 38 (37). pr. ; Voet, 36. 1. 34 ; Huber, 2. 19. 108 ; Sande, 
Decis. Fris. 4. 5. 13, where it is laid down that before ' restitution ' a 
fideicommissary cannot maintain an action against a third party in 
possession. 

2 Inst. 2. 20. 2 ; Cod. 6. 43. 1. 1. 



TESTAMENTARY SUCCESSION 319 

Let us now confine our attention to the most usual case Fidei- 
of fideicommissum, viz. where the fiduciary is intended to 5°^°"^ 
take a life interest and to ' restore ' the property upon his taking 
death. What is his position ? In the first place, unless death. 
the testator has directed otherwise/ he must give security 
for the restoration of the property, undiminished in 
amount and value, to the person entitled to succeed him.^ 
In the interval he is dominus, and may exercise all rights 
of dominion not inconsistent with the rights of his suc- 
cessor. Like the usufructuary, he may transfer his right 
of enjoyment to another, remaining liable, however, to 
the fideicommissary for the acts and defaults of the 
transferee. 

Next, put the case of a fideicommissum expressed to Kdei- 
take effect upon the happening of a contemplated event g"™""'^" 
during the lifetime of the fiduciary, which event has taking 
happened. Has he ipso jure ceased to be dominus ? It is during 
submitted that he has. At all events, he cannot deal *^^l'^^- 

time of 

with the burdened property, so as to give a good title to the fidu- 
a purchaser, however innocent. This is expressly enacted "*'^^' 
in Cod. 6. 43. 3 to the following effect : ' If a legacy or fiduciary 
fideicommissum be left to any one with a condition of S'^^,^.,, 

•' good title 

substitution or restitution, either in an uncertain event tea 
or in a certain event but at an indefinite time, he will do ^thout"'^ 
better if in these cases he refrains from selling or mortgag- notice ? 
ing the property, lest he should expose himself to still j^^?™^" 
greater burdens under a claim of eviction. But if in his 
lust for wealth he should hastily proceed to a sale or 
mortgage in the hope that the conditions will not take 
effect : let him know that, upon the fulfilment of the con- 
dition, the transaction will be treated as of no effect from 
the beginning, so that prescription will not run against the 
legatee or fideicommissary. And this rule will, in our 
opinion, equally obtain whether the legacy has been left 

1 Van Leeuwen, 3. 8. 18 ; Huber, 2. 19.^ 134 ; V. d. K. Th. 511 
(mistranslated by Lorenz). 

2 Huber, 2. 19. 83 and 131. He must also make an inventory. 
From this duty he cannot be excused even by the testator himself. 
Voet, 36. 1. 36. 



320 THE LAW OP SUCCESSION 

ttnconditionally or conditionally to take effect at some 
certain or uncertain future time, or in an uncertain event. 
But in all these cases let the fullest liberty be given to the 
legatee or fideicommissary to claim the property as his 
own, and let no obstacle be placed in his way by those who 
detain the property '} 
in Roman- That the principles set forth in this law were accepted 
Law" ^^ V^^^ of the law of Holland admits of no doubt. The 
reader wiU observe that the tenderness for the bona fide 
purchaser for value, which characterizes the jurisprudence 
of the Court of Chancery, has no counterpart in the 
Roman-Dutch law of fideicommissa. 
In what In a limited number of cases alienation was permitted 
aUenation ^^ ^^ ^^ P^^^ ^^^ property free of a future or contingent 
is per- fideicommissum. The rule and its exceptions are stated 
in the following passage of Van der Linden : ' The person 
in possession of any fideicommissary property has, how- 
ever, no power to pledge or alienate that property as he 
pleases, except for the payment of the debts with which 
the property itself is charged ; or with the consent of all 
the remaindermen, and for reasons of pressing necessity. 
In which case, however, previous release and authoriza- 
tion [of the Court] should be obtained.' ^ 
The posi- Next let us consider the position : if (a) the fiduciary 
(a) fidu- ^^^ before the testator ; or (&) the fideicommissary dies 
ciary dies before the vesting of the fideicommissum. The result in 
testator ; each Case is the same ; the fideicommissum fails. In the 
(6) fidei- first case there is never any one burdened ; * in the second 
sary'dies ^^^^ there is nevcr any one entitled.* A cautious testator 
before can, no doubt, by taking the proper steps provide against 

^ De Jager v. Scheepers (1880) Foord at p. 123, per de Villiers C. J. 

2 V. d. L. 1. 9. 8. 

' Voet, 36. 1. 69 ; Huber, 2. 19. 11^21. The result is the same, 
Huber says, if the fiduciary dies before he has accepted the inheri- 
tance. But see Girard, p. 934, n. 4. 

^ Voet, 36. 1. 67 ; Huber, 2. 19. 31 and 50. In some cases, however, 
the fideicommissary may claim the property even before the vesting 
of the f.c, notably if the fiduciary has alienated all the property. Ibid. 
sec. 125. If the fiduciary dies after the vesting of the inheritance 
but before the fideicommissary, the f.c. must be implemented by the 
heir. Ibid. sec. 120. 



vesting. 



fideicom- 
misaum ; 



usufruct. 



TESTAMENTARY SUCCESSION 321 

such a resvilt.^ But if he has failed to do so, there is no 
escape from the legal consequences. 

This is why when a life interest is given by will it is of Distino- 
the utmost importance to find out whether the testator tween Hfo 
intended to create the life interest by way of fideicom- interest 
missum or by way of usufruct. From the point of view (a) by ' 
of the life tenant the result is, perhaps, much the same in 
either case. But from the point of view of the person who (6) by 
is to take after him the distinction is of vital importance. 
If the life tenancy is created by way of usufruct the 
dominium vests forthAvith in the person who is to take as 
successor. He acquires from the very moment of the 
testator's death a real right, which he can dispose of 
inter vivos or by will or transmit to his intestate heirs. 
But if the life tenancy is the consequence of a fideicom- 
missum, the fideicommissary takes no immediate interest. 
He must be alive when the fiduciary dies. If he prede- 
ceases the fiduciary, he transmits nothing to his heirs,^ 
for he had nothing to transmit, and the ownership, which 
was from the beginning vested in the fiduciary, being now 
freed from the burden of the fideicommissmn, is his to 
dispose of in any way he pleases. This fimdamental 
distinction is seldom present to the mind of lay people 
who make wiUs, and the task of construing their dispo- 
sitions is often a matter of some difficulty. A clause 
forbidding alienation by the life tenant points to a fidei- 
commissum, but affords merely a presumption, not a 
positive rule of law.* The tendency of the Courts in doubt- 
ful cases seems to be to decide against fideicommissum 
and in favour of usufruct. 

1 Huber, 2. 19. 38. 

^ Voet, 7. 1. 13 ; 36. 1. 26. But ' although there is a presumption 
in the case of a fideicommissum that a testator intended a fideicom- 
missary legatee to have no transmissible rights unless he survives the 
fiduciary legatee, such presumption would have to yield to other clear 
indications in the wiU of an intention to the contrary '. Samaradi- 
wakara v. de Saram [1911] A. C. at p. 765, per Lord de Villiers. 

^ Voet, 7. 1. 10 ; Samaradiwakara v. De Saram, ubi swp. at p. 762. 
Conversely if a person is instituted as heir in the usufruct of a thing 
with power of alienation, he is considered to have been instituted in 
the ownership. Van Leeuwen, 3. 8. 17. Of. V. d. K. Th. 374-5. 

1713 Y 



322 



THE LAW OF SUCCESSION 



The 

Trebellian 
' portion ; 



in Roman- 
Dutch 
Law 

might be 
accumu- 
lated with 
the 
legitim ; 



abolished 
in the 
modern 
law. 



It will be remembered that the Senatus-Conaultum 
Pegasianum (between A. d. 69 and 79) allowed the fidu- 
ciary heir or legatee to retain one fourth share against 
the fideicommissarius. Justinian, while abrogating the 
Senatus-Consultum as a whole, re-enacted this clause as 
part of the S. C. Trebellianum.^ In the modem books, 
therefore, this fourth share is commonly known as the 
quarta Trebelliana {Trebellianique portie).^ The Roman- 
Dutch Law adopted this provision of the Roman Law and 
extended its scope. By the Roman Law children and 
other descendants were not permitted to retain the 
legitima portio and, in case they were burdened with 
fideicommissa, the TrebeUian portion as well. The Canon 
Law, however, allowed them to claim under both heads, 
and this practice was adopted into the law of Holland 
and of other countries.^ The result was that a son or 
other descendant charged with a universal fideicommissum 
and unprovided for by legacy or otherwise, deducted 
first of all his legitima portio, which (if there were not 
more than four sons) would be one third of his intestate 
share, and, then, the TrebeUian portion, namely one fourth 
of the residue. An only son, therefore, got in the aggre- 
gate J 4- (i X f ) =i= J. It is often said that he takes two 
quarters- — a simpler, though inaccurate, way of expressing 
the actual result. Whatever the number of the children, 
they did not in Holland in any event retain more than 
one half of the whole estate between them.* 

We need not say any more about the quarta Trebelliana, 
for it has been disused or abohshed by statute in all the 
Roman-Dutch Colonies.^ 

It has been observed more than once that the chief use 



1 Inst. 2. 23. 7. ^ Voet, 36. 1. 47 ff. 

3 Gr. 2. 20. 10; Voet, 5. 2. 14; 36. 1. 52; Huber, 2. 19. 85. 
The testator, however, might put his child to election whether he 
would take the legitim unburdened or his whole intestate share subject 
to a fideicommissum. V. d. L. 1. 9. 8; Simpson v. Forrester (1829) 
1 Knapp, P. C. at p. 243. 

" Neostad. Deois. van den Hove, nos. 3 and 17 ; Decis. Swpr. Cur. 
no. 21 ; Voet, 5. 2. 14 ; V. d. K. Th. 316. 

^ Swpra, p. 306, n. 6. 



TESTAMENTARY SUCCESSION 323 

of the fideicommissum was to tie up property through 
succeeding generations. We are told in the Institutes The rule 
that a testator might charge a fideicommissum not only pf^p^ui- 
on an heir or legatee, but also on a fideicommissary. In ties in 
this way the testator might tie up the property for so and 
long as he pleased. Had the Roman and the Roman- ^^^°^ 
Dutch Law, then, no Rule against Perpetuities ? Yes ; 
but one which gave way before the clearly expressed ■ 
intention of the testator to override it. The rule, which 
is derived from Justinian's 159th Novel (a. d. 555), is 
stated by Voet in the following terms ; ^ 

' Now since there has been frequent mention of a per- 
petual fideicommissum in the preceding sections, it should 
be made clear that it has been generally held that where 
there is any doubt such perpetuity only extends to the 
fourth generation, and that thereafter the property is 
unburdened, so that the fifth generation is able to dispose 
thereof at will ; unless there be clear evidence of a con- 
trary intention on the part of the testator, to the effect 
that the property should be subject to a further burden 
in the hands of one desiring to take it. For it would 
seem that we cannot deny the testator's right to continue 
the grades (degrees) of fideicommissary substitution at 
his discretion ad infinitum after the manner of the direct 
substitution.' 

The testatbr, then, may tie up the property for ever if 
he pleases. But the mere use of the word ' perpetual ', 
or the Hke, is not sufficient to produce this result.^ 

Thus, if he says : ' I AviU that my goods after the death 
of my first heir shall descend to my next of kin then in 
being, and that they shall always go from one to the other 
of my blood-relations, and shall not at any time pass 
outside my family ',' these words will not be sufficient 

1 Voet, 36. 1. 33 (translated by Mr. Justice A. J. McGregor). 

^ Of. Sande, Decis. Fris. 4. 5. 4, where the head-note runs : ' Per- 
petuum fideicommissum non extendi ultra quartum gradum, nisi 
enixa Testatoris voluntas aliud suadeat.' See on the whole subject, 
and particxJarly on the mode of computing the four degrees, Strickland 
V. Strickland [1908] A. C. 551. 

3 Huber, 2. 19. 63. 

Y2 



324 THE LAW OF SUCCESSION 

to tie up the property beyond the fourth generatio: 
inclusive, unless he goes on to add that : ' the fideicom 
uiissum shall not at any time or in any event 'whatsoeve 
come to an end ', or other words of Uke import/ By th 
fourth degree is meant not the fourth degree of descen 
from the testator, but the third degree after the institutec 
heir, who himself makes the first degree.^ 
Mutual 12. Mutual Wills. This topic has been referred t( 

above. It was in Holland, and is in South Africa, tht 
common practice for two or more persons, usually bu1 
not necessarily two spouses, to join in making a single 
disposition of property which is known as a reciprocal oi 
mutual will.^ The principles of law applicable to such 
dispositions are briefly and accurately stated by Van 
Leeuwen in the following passage : * 

' A husband and wife may together make their joint 
will in one writing. Such joint will, however, is con- 
sidered as two separate wills, which either of them may 
specially and without the knowledge of the other, or even 
after that other's death, always alter ; except only where 
either of them has reciprocally benefited the other thereby, 
and directed how the disposition of the property of their 
joint estate after the death of the survivor is to be regu- 
lated ; in this case the survivor, if he or she has enjoyed 
or wishes to enjoy the benefit, cannot make any other 

^ Huber, 2. 19. 64-5 : ten ware de Testateur met zeer krachtige 
en dringende woorden hadde belast dat hy immers de bezwarenisse 
ten eeuwigen dage wilde hebben uitgestrekt, in welken gevalle de wille 
van de Testateur plaets soude moeten hebben. 

2 Huber, 2. 19. 65. But Van Leeuwen (3. 8. 7) says : ' The first 
degree does not commence with the first heir but with him upon whom 
the entailed property after the death of the first heir comes to descend 
(Kotz^'s translation). In Ceylon by Ord. No. 11 of 1876 immovable 
property may not by any will, deed, or other instrument be made 
inalienable for a longer period than the life or lives of persons who are 
in existence or en ventre sa mere at the time of its execution and are 
named described or designated in it, and the lite of the survivor of 
such persons ' (sec. 2) ; and any prohibition or restriction of alienation 
so far as it extends beyond the above-mentioned period is null and 
void (sec. 3). 

" Gr. 2. 15. 9 ; 2. 17. 24, and Groenewegen, ad loc. ; Cens. For. 1. 3. 
2. 15 and 1. 3. 11. 7 ; Voet, 23. 4. 63 ; Boel ad Loen. Cas. 137 ; V. d. K. 
Th. 283, 298. 
* Van Leeuwen, 3. 2. 4 (KotzA's translation). 



TESTAMENTARY SUCCESSION 325 

disposition or will of his or her half unless the benefit 
bestowed has been repudiated and renounced.' 

In another place he writes : ^ 

' Whenever two spouses have bequeathed to one 
another some benefit, and coupled therewith a direction 
indicating how the property of the common estate shall 
be disposed of upon the death of the survivor, the latter, 
having enjoyed the benefit, cannot alter by subsequent 
wiU the disposition of his or her share.' 

Mr. Justice Kotze, commenting upon the first of these 
passages, observes ^ that aU the propositions therein laid 
down were approved and adopted by the Privy Council 
in Denyssen v. Mostert (1872) L. R. 4 P. C. 236 ; and also, 
it may be added, in many subsequent cases.* 

It must be carefully remarked that if the above prin- 
ciples are to apply it is essential that there should be 
a massing of or joint dealing with the whole estate. It 
would be quite possible for husband and wife to execute 
a joint will in which each one dealt exclusively with his 
or her half of the joint estate without dealing in any way 
with the moiety belonging to the other spouse. Even 
acceptance of a benefit under the will of the predeceasing 
spouse would not in such a case affect in any way the 
testamentary freedom of the other. Observe, further, 
that for the rule to apply actual acceptance or, as it is 
often called, ' adiation ' by the survivor is essential. The 
opinion expressed by Fitzpatrick J. in 8. A. Association 
V. Mostert * that the parties to a joint wiU were mutually 
bound by contract not to change their dispositions except 
by mutual consent and that this was so whether benefit 
was accepted or not, was dissented from by his colleague 
Mr. Justice Denyssen, and overruled by the Judicial 
Committee. 

^ Van Leeuwen, 3. 3. 8. 

2 Translation of Van Leeuwen, vol. i, p. 318. 

* Such as Bias v. Livera (1879) L. B. 5 App. Ca. 123 (Ceylon) ; 
Abeyesekera v. TilleJceratne [1897] A. 0. 277 (Ceylon) ; Natal Bank, Ltd. 
V. Rood [1910] A. C. 570 (Transvaal). 

* (1869) Buch. 231. 



326 THE LAW OF SUCCESSION 

CHAPTER III 

INTESTATE SUCCESSION 

The law A MAN IS Said to die intestate when he dies without 
of intes- leaving a valid will, or if no one accepts a benefit under his 

tale BUG- o ' jr 

cession, will. Further, since one may in the modern law die 
partly testate, partly intestate, an intestacy also arises 
with regard to any property of the deceased which faUs 
under either of the above-mentioned categories, although 
he may not die intestate in respect of other property. 
Bewilder- The law of intestacy in the United Provinces presented 
'°s . a bewildering picture. It varied from province to pro- 

variety in " ^ r r 

the vince and, almost, from town to town. In Holland and 

lands!"^ West Fricsland in particular two systems of intestate 
succession principally prevailed, the geographical limit 
which defined the two being, in the main, determined by 
the River IJssel.^ This stream (which is not to be con- 
founded with another river of the same name, which dis- 
charges into the Zuyder Zee) was from ancient times the 
boundary fine between North and South Holland. South 
of it prevailed a system of intestate succession known as 
Sohepen- Schependoms-recht, so called because it was laid down in 
reoht ^^® dooms or judgments of the local magistrates called 
Schepenen.^ North of it, prevailed a different system 
Aasdoms- known as Azingdoms-recht or Aasdoms-recht, because 
recht. derived from the dooms of a judicial authority called the 
Azing, who in Friesland and some adjoining districts was 
anciently associated with other men of the neighbourhood 
in the administration of justice.* These two systems 
Different ,ji£fered toto coelo.^ The principal characteristic of each is 

theories -^ ^ 

of these expressed in the proverbial maxims, Het goed moet gaan 
systems ^^^ waar het gekomen is ' and ' Het naaste bloed erft 

^ Inst. 3. 1. 1. pr. : Intestatus decedit, qui aut omnino testamentum 
non fecit aut non iure fecit, aut id quod fecerat ruptum irritumve factum 
est, aut nemo ex eo heres exstitit. 

2 Gr. 2. 28. 2. => Gr. 2. 28. 10-11. « Gr. 2. 28. 7-9. 

■' Vinnius ad Inst. lib. iii, tit. 6, in appendice ' de forma succedendi 
ab intestato apud Hollandos et Westfrisios,' sec. 1. 



INTESTATE SUCCESSION 327 

het goed '. By the Schependoms Law ' the goods must go 
whence they came ' ; ^ which means that the goods of 
a deceased person were taken by a fiction of law to have 
devolved upon him mortis causa from both parents 
equally. If, therefore, the deceased left one surviving 
parent behind him, the deceased's estate was supposed to 
have come to him wholly from the dead parent and not 
at all from the living one. Accordingly it reverted to 
the side from which it was supposed to have come : viz. 
if the father were dead, to the relatives ex parte paterna 
to the exclusion of the mother ; if the mother were dead, 
to the relatives ex parte materna to the exclusion of the 
father. This rule, together with the further principle of 
unlimited representation ^ in the descending and collateral 
Hues, was the key-note of the old Schependoms Law, 
which accordingly determined the succession as follows : ^ 

1. Children succeed equally, males and females aHke, Canons of 

.,1 J. J.' J- ■ • J" -J succession 

with representation per stirpes m injimtum. under 

2. Failing children of the deceased both parents tlieold 

. . , , , . , . Sohepen- 

surviving succeed to equal moieties. domsLaw. 

3. If one parent only survives the whole estate goes 
to the children of the deceased parent, i. e. to the brothers 
and sisters of the intestate, whether of the whole or of the 
haH blood, with representation per stirpes in infinitum. 

4. If both parents are dead, the estate goes in equal 
moieties to the children of the deceased father and to 
the children of the deceased mother, i. e. one moiety to 
brothers and sisters of the intestate, whether of the whole 
or of the half blood ex parte paterna, with representation 
as before stated ; the other moiety to brothers and sisters 
of the intestate, whether of the whole or of the half blood 
ex parte materna, with representation as before stated. 
From this it will be seen that whole brothers and sisters 
take ' with the whole hand ', i. e. take twice over : once 
as children of intestate's father, once as children of 

1 Gr. 2. 28. 6 ; Viimius, ubi sup., sec. 2 ; V. d. K. Th. 347. 

2 Van der Vorm, Versterfrecht, ed. Blondeel, cap. vii, p. 34. 
* Van der Vorm, pp. 35-6. 



328 THE LAW OP SUCCESSION 

intestate's mother. Half brothers and sisters, however, 
take only with the half -hand, i. e. take only once — viz. in 
competition with the brothers and sisters of the deceased 
of the whole blood in respect of the father's or the mother's 
moiety according as they were related to the deceased on 
the father's or on the mother's side.^ 

5. Failing children, parents, and issue of parents, the 
estate goes in like manner to the four quarters (vier 
vierendeelen), i. e. to the grandparents of the intestate 
per tineas, viz. one moiety to the paternal grandparents, 
the other moiety to the maternal grandparents. Within 
each hne identically the same principles are applied as 
have been stated above in rules (2), (3), and (4) — a sole 
surviving grandparent taldng nothing — ^representation of 
uncles and aunts by their issue being admitted per stirpes 
in infinitum — the half-blood always taking with the haK- 
hand. 

6. Failing children, parents, and issue of parents, grand- 
parents and issue of grandparents, the estate goes in like 
manner to the eight quarters, viz. to the stocks of the 
eight great-grandparents, and so on in infinitum. 

Canons of By the Aasdoms Law ' the nearest blood inherits the 
sion u^nder goods '.^ This rule, together with the preference of 
the old descendants to ascendants and of ascendants to coUa- 
Law. terals, and the total exclusion of all representation, 
furnishes the key to this system ; which, further, makes no 
distinction between the whole and the half blood, and has 
no theory as to the source from which the goods may be 
supposed to have come. 
Accordingly the order of succession is : ^ 
1. Descendants — children excluding grandchildren, 
grandchildren excluding great-grandchildren, &c. 

^ But, if only one parent was dead, the half-blood on the side of the 
deceased parent took with the whole hand in concurrence with the 
children of the whole blood. This principle is of universal application, 
and wiU be assumed as known, wherever the halt-blood is said to take 
with the half-hand. 

2 Gr. 2. 28. 3 ; Vinnius, idi mp., sec. 3 ; V. d. K. Th. 346. 

^ Van der Vorm, cap. ix, pp. 79-80. 



INTESTATE SUCCESSION 329 

2. Ascendants — two surviving parents equally ; oiie 
surviving parent solely ; in default of parents grand- 
parents (on both sides or on one side) equally ; a single 
surviving grandparent solely ; and so on, to the exclusion 
of collaterals. 

3. Collaterals — brothers and sisters, of the whole or of 
the half-blood equally, to the exclusion of nephews and 
nieces ; collaterals of the third or remoter degrees equally 
without representation. 

In 1580 the States of Holland and West Friesland, Succes- 
desiring to estabhsh one uniform system of intestate f^^ "" '"^ 
succession for the whole Province, enacted the Political Political 
Ordinance of April 1 of that year.^ The system therein of April 
laid down, which came to be known as the New Schepen- '• ^^**'- 
doms Law, departed from the Old Schependoms Law in 
one particular only, viz. in restricting representation in 
the collateral line to the fourth degree.^ 

Succession under the Political Ordinance therefore is as 
follows : 

1. Children^ [ut supra, p. 327). 

2. Parents * {ut supra, ibid.). 

3. Brothers and sisters being the issue of a deceased 
parent, their children and grandchildren, according to 
the system above described.^ 

4. Remoter descendants of such brothers and sisters 
per capita according to proximity of degree.® 

5. Grandparents ^er lineas ' and the children and grand- 
children (but not remoter descendants) of a deceased 
grandparent, according to the system above described.^ 

6. Remoter descendants of grandparents per capita 
according to proximity of degree. 

7. Great-grandparents and the descendants of a 

* Ordonnantie van de Policien biimen Hollandt, in date den eersten 
Aprilis 1580, Arts. 19 ff. (1 G. P. B. 335) ; Gr. 2. 28. 11 ; Vimiius, ubi 
sup., sec. 4 ; Van Leeuwen, lib. ill, cap. xiii, 

^ Van der Vorm, cap. vii, sec. 14, p. 37. 

» P. O. Art. 20. * P. O. Art. 21. ^ P. O. Arts. 22 and 23. 

« P. O. Arts. 22, 24, and 28. ' P. O. Art. 25. 

8 P. 0. Arts. 24 and 28. 



330 THE LAW OF SUCCESSION 

deceased great-grandparent according to the system 
above described, collaterals of equal degree taking 'per 
capita to the exclusion of remoter degrees ; ^ and so on 
in infinitum.^ 

8. Faihng all relatives whatsoever, the fisc succeeds 
to the property as bona vacantia^ to the exclusion of a 
surviving spouse.* 

It must be borne in mind that the principle of splitting 
the inheritance, when the two parents are dead (or alive), 
and in case one parent alone is dead, of carrying the whole 
inheritance to the issue of the deceased parent, persists 
throughout the whole scheme of intestate succession. 
Each ascendant in his (or her) own person makes a fresh 
line, and if such hne is exhausted the share belonging to 
that line must be divided into halves, and carried haK and 
half to the paternal and maternal hnes of such ascendant. 
This is why grandchildren of uncles and aunts (though 
in the fifth degree) come in before great-grandfathers 
or great uncles, though in the third and fourth degree 
respectively. Though this consequence is not clearly 
stated in the Political Ordinance, it is a necessary infer- 
ence from the root principles of the Schependoms-recht ; 
and is expressed in the maxim 'Het goed klimt niet geem'; 
or, in other words, descendants are preferred before 
ascendants.^ 

The Inter- This new system of succession and an Interpretation * 

of May""^ of it, dated May 13, 1594, failed to win the adhesion of 

13, 1594. most of the towns and districts of the northern part of 

Holland. Accordingly, in 1599 the States, yielding to 

the representation of fourteen principal towns, enacted 

a placaat, under date December 18, designed to supply 

1 P. 0. Art. 28. 2 V. d. K. Th. 364. 

^ V. d. K. Th. 366. However, if there is a complete failure of kin 
on one side only the relatives on the other side are admitted before the 
fisc. Ibid. In the case of bastards the whole estate goes to the relatives 
ex parte maierna. This is so both by Sohependoms and by Aasdoms 
Law. V. d. K. Th. 368. * V. d. K. T^. 365. 

^ Van der Vorm, VersterfrecM, cap. viii, sec. 64, p. 68. 

8 1 G. P. B. 342. 



INTESTATE SUCCESSION 



331 



a common law for North Holland in substitution for the 
Political Ordinance.! The order of succession in the 
placaat, though known as the New Aasdoms Law, departs 
considerably from the Old Aasdoms Law, approaching 
more nearly in some respects to the Schependoms Law, 
in other respects to the Roman Law. 

The order of succession prescribed by the Placaat is as Suooea- 

followS : sion under 

1. Descendants ; as in the Old and New Schependoms Placaat 

Law ^ °^ Decem- 

■ ber 18, 

2. Father and mother, both being alive.^ 1599. 

3. If one parent survives, one moiety goes to such 
parent, the other moiety to brothers and sisters of the 
deceased (being the children of the deceased parent), and 
their children and grandchildren by representation,* as 
in the Schependoms Law ; with this difference, however, 
that if there are no such brothers or sisters alive, descen- 
dants of deceased brothers and sisters have no independent 
right of succession to the inheritance, which in that case 
goes whoUy to the surviving parent.^ 

^ Placaat op 't stuck van de Successien ab intestate, December 18, 
1599 (1 G. P. B. 343) ; Gr. 2. 28. 12 ; Vinnius, ubi sup., sec. 4 ; Van 
Leeuwen, lib. iii, cap. siv, and cap. xii, sec. 8, where a list is given 
of the towns and places which followed the placaat of 1599. 

" Placaat, Art. 1. s placaat, Art. 2. 

* Placaat, Art. 3. The Placaat says: ende alsser egeene voile 
Breeders ofte Susters in't leven zijn, sal de langstlevende Vader ofte 
Moeder in alle de goederen by den overleden ontruymt, universaliter 
succederen, ende voor andere coUaterale Vrienden gheprefereert zijn, 
alwaer 't oock soo datter kinderen ofte kintskinderen van des overledens 
voUe Broeder ende Suster, ofte oock halve Breeders ofte susters waren. 
But this must not be understood so as to postpone to a sole surviving 
parent the half brothers or sisters on the deceased side, or the children 
or children's children of such brothers or sisters if either full brothers 
or sisters or half brothers or sisters on the deceased side are still 
alive ; in other words, to give the true meaning of the Placaat we 
must : (1) insert after the words ' voile Breeders ofte Susters ' the words 
'ofte halve Breeders ofte Susters van de bestorvene zijde'; and (2) 
either : (a) insert before the words ' halve Breeders ofte Susters ' the 
words ' van des overledens ' so as to read ' ofte oock van des overledens 
halve Breeders ofte Susters ', soil. ' van de bestorvene zijde ' ; er (6) add 
after the words ' halve Breeders ofte Susters ' the words ' van de enbestor- 
vene zijde.' See Van der Verm, op. eit., cap. x, sees. 20-22, pp. 92 ff., 
and V. d. K. Th. 356. 

^ Van der Vorm, tibi sup., sec. 22, p. 95. 



332 THE LAW OF SUCCESSION 

4. If both parents are dead the estate goes in equal 
moieties to the brothers and sisters (their children and 
grandchildren by representation) on the two several sides, 
as in the New Schependoms Law.^ But if, on either side, 
there are only brothers' and sisters' children, or only 
brothers' and sisters' children's children living, they take 
per capita and not per stirpes, but if on either side there 
are both brothers' and sisters' children, and also the 
children of deceased brothers' and sisters' children Uving, 
the latter come in^er stirpes as representing their deceased 
parent.^ 

If there is a complete fq,ilure of brothers and sisters, 
their children and children's children, on the side of one 
parent, the moiety in question goes to the nearest ascen- 
dants of such parent per capita : in default of ascendants, 
the whole inheritance goes to the brothers and sisters on 
the side of the other parent and to their children and 
grandchildren by representation.^ 

5. Failing parents, brothers and sisters, their children 
and grandchildren, the estate will not go, as in the new 
Schependoms Law, to the remoter descendants of brothers 
and sisters at once, but first goes to remoter ascendants 
of the deceased per capita according to proximity of 
degree, the nearer excluding the more remote, without 
distinction of sides or of lines, all ascendants of the same 
degree taking equally per capita without representation.* 

6. Next in succession come the remoter descendants of 
brothers and sisters, whether of the whole or of the half 
blood, according to proximity of degree per capita, the 
nearer excluding the more remote.^ 

7. Then foUow uncles and aunts per capita, without 

^ Placaat, Arts. 4^5. 

° Placaat, Arts. 11-12. In other words, in collateral successions 
the Placaat borrows f rpm the Schependoms Law the principle of unequal 
representation to the fourth degree inclusive, but not the principle of 
equal representation. Van der Vorm, cap. x, sec. 54, p. 113. Repre- 
sentation is said to be equal ' so wanneer de geene die totte successie 
(by representatie) komen, al te samen den overleden even na in grade 
bestaan.' 

" Placaat, Art. 6. * Placaat, Art. 7. = Placaat, Art. 8. 



INTESTATE SUCCESSION 333 

distinction between sides or Hnes, or between whole and the 
half blood : the children, but not the grandchildren, of 
a deceased uncle or aunt representing their parent, per 
stirpes?- But if there are no uncles or aunts Uving, the 
children of a deceased uncle or aunt do not succeed in this 
class as representing their parents, but are only admitted 
in the next class along with other collaterals of equal 
degree.^ 

8. Next come other collaterals in the fourth or remoter 
degree per capita in infinitum,^ without distinction 
between sides or Hnes, or between the whole and the half 
blood. Thus first cousins (there being no uncle or aunt 
alive) come in, share and share alike, with great-uncles 
and great-aunts, being like them in the fourth degree of 
succession to the deceased.* 

9. Finally, all successions not provided for above are 
to be governed by Roman Law.^ This lets in the widow,*' 
and in the last resort the fisc' 

The comment of Van der Vorm on Art. 14 is worth 
quoting : ' No cases, at all events few cases, can be 
imagined, which are not provided for in this Placaat ; if 
not expressly and specifically with regard to each point, 
at least tacitly and with relation to similar points. There- 
fore, if any cases are here omitted, the foundation for 
which is nevertheless laid, and which proceed by a neces- 
sary consequence and by concatenation from this founda- 
tion ; in such case the disposition of the fundamental 
law must be followed, and not the Roman written laws, 
where they in such cases rest upon another foundation. 
Also the intention of the legislator was not that one should 
be guided exactly by the letter and words of the Placaat, 
but rather by its sense and intention. " Scire enim leges 
non hoc est verba earum tenere sed vim ac potestatem." 

1 Placaat, Art. 9. ^ piacaat, Art. 10. ' V. d. K. Th. 364, 

^ Placaat, Arts. 10, 13. = Placaat, Art. 14 ; V. d. K. Th. 359. 

« V. d. K. Th. 365. Van der Vorm (cap. x, sec. 63, p. 119) says not, 
but see ' The Intestate Succession of Husband and Wife in Roman- 
Dutch Law', Journ. Ccmp. Leg., N. S. 6, vol. xiii. (1912) p. 310. 

' Van der Vorm, iibi sup. 



334 



THE LAW OF SUCCESSION 



Intestate 
sucees-. 
sion in the 
Dutch 
Colonies. 



1634. 
The case 
of Gre- 
gorius 
Cornely. 



1642. 
The old 
statutes 
of 
Batavia. 



Dig. 1. 3. 17. Therefore one must not act upon the 
Roman Laws in all cases, which are not here specifically 
and individually determined ; but only in the cases the 
basis whereof is not laid down in the Placaat, or the 
foundation whereof is built upon the Roman Law. For 
example, if dispute should arise with regard to nearness 
of degrees, where the nearest in degree are called to the 
succession, the decision will be drawn from the Roman 
Law.' ^ 

Thus far we have described the two prevailing systems 
of intestate succession of the province of Holland. Each 
of the other provinces had its own scheme, and there 
were, besides, numerous local variations. In view of this 
great variety of usage the question of intestate succession 
in the Dutch Colonies must have been insoluble except by 
legislative authority. 

Accordingly, we find the States-General prescribing the 
canons of intestate succession for the East and West 
Indies, in a way, however, which sometimes tended rather 
to deepen than to remove the obscurity in which the 
subject was involved. 

We shall speak first of the East Indies, including Ceylon 
and South Africa. 

In the year 1634 one Gregorius Cornely, domiciled at 
Middleburg in Zeeland, died in the Indies leaving two 
children, who also died. The States-General directed 
that the succession should go according to the PoKtical 
Ordinance and the laws of Zeeland.^ It does not appear 
that this order was intended to lay down a general rule. 

In 1642 Governor A. Van Diemen promulgated his 
collection of statute law known as the Old Statutes of 
Batavia.* It is expressed to be provisional in character,* 

^ The Placaat says : ' Eyntliok aUe andere sucoessien daer van hier 
vooren niet en is ghedisponeert sullen ghereguleert worden nae de 
waerlycke besohreven Rechten.' ' Waerlycke ' is doubtless an error 
for ' Waereldlyoke ', i. e. the jus civile as contrasted with the jus 
oanonicum. 

^ J. A. Van der Chijs, Nederlandsch-Indisch Plakaat Boek, vol. i, 
p. 363. 3 Op. cit., p. 472. * Op. cit., p. 474. 



INTESTATE SUCCESSION 335 

and to remain in force until the Council of Seventeen with 
the authority and approbation of the States-General 
should otherwise determine. With regard to intestate 
succession in particular it provides that ' the law of the 
towns of North Holland shall be followed as was ordained 
in the year '16 on directions from the Council of Seven- 
teen '.^ The detailed rules which follow correspond in aU 
particulars with the Placaat of 1599 and are, therefore, 
pure Aasdoms Law. 

In 1661 the States-General, moved thereto by repre- 1661. 
sentations from the Company's officials, issued the well- octrooi to 
known Octrooi or Charter of January 10.^ Having con- the East 
sidered the regulations of 1629 and 1636 issued for the Company; 
West Indies, which introduced the Political Ordinance 
into those regions, they resolved ' after ripe deliberation 
that the same law together with the Interpretation of 
1594 should apply to aU Lands, Towns and Peoples in 
India obedient to the State of the United Netherlands 
and under the direction of the East India Company ', and 
also in respect of succession to persons dying on the out- 
ward or homeward voyage. The Octrooi does not contain in what 
the terms of the Pohtical Ordinance, but incorporates ^^^"tit 
them by reference, subject to an important deviation in from the 
the sense of the Aasdoms Law in favour of a sole surviving Ordin"-"* 
parent, who by the Political Ordinance is not admitted ''"^"ce. 
to the inheritance of a deceased child. This interpolated 
section corresponds closely, but not exactly, with Art. 3 of 
the Placaat of 1599, and lends some colour to the state- 
ment that the Octrooi is based upon the law neither of 
North Holland nor of South Holland, but is partly derived 
from both. The statement, however, is misleading, for 
except for the above-mentioned modification it corre- 
sponds in every particular with the law of South Holland. 

In 1766 Governor Van der Parra submitted for the 

1 Op. cit., p. 543. 

2 2 G. P. B. 2634 ; Van der Vorm, p. 631. The Charter was pro- 
mulgated in Batavia on February 7, 1661. Van der Chijs, vol. ii, 
p. 340. 



336 



THE LAW OF SUCCESSION 



1766. 
The new 
Statutes 
of 
Batavia. 



Intestate 
succes- 
sion in 
Ceylon : 

conflict- 
ing 
opinions, 



approval of the Seventeen and of the States-General, the 
collection known as the new Statutes of Batavia.^ This 
Code, though in use in the Courts — so Mr. Van der Chijs 
informs us — for nearly a century, never in fact received 
recognition from the highest authority. It had not there- 
fore, strictly, the force of law.^ In respect of intestate 
succession, it reproduces seriatim the substance of Van 
Diemen's earlier Code, together with the express pro- 
visions of the Octrooi above cited. This is plainly wrong. 
The old Statutes of Batavia as regards succession cannot 
have continued to exist side by side with the Octrooi, 
which is inconsistent with them. That the Octrooi, and 
therefore the Schependoms-recht, was in fact the law of 
succession for Batavia appears inter alia from another 
portion of Van der Parra's Statutes, where it is laid down 
that Orphan Masters are not liable to actions, except on 
the ground of wilful default, or if they act contrary to the 
clear language of statutes or of the Octrooi on intestate 
succession.* 

So far we have spoken of the East Indies in general. 
It remains to see how the law stood, and stands, in Ceylon 
and in South Africa in particular. In neither of these 
countries was the matter free from doubt. 

For Ceylon we have the guidance of two cases in which 
the question of intestate succession was carefully con- 
sidered. In the first of these, decided in 1822,* Sir 
Hardinge Giffard C. J. delivering the judgment of the 
Court of Appeal, pronounced, not without considerable 
hesitation, in favour of the view that the North Holland 
Law obtains in Ceylon. In 1871 the same Court, over 
which Sir Edward Creasy then presided as Chief Justice, 
clearly indicated an opposite opinion.^ The writer sub- 
mits that the latter is the better view. 



^ Van der Chijs, vol. ix, p. 404. 
" Op. cit., p. 25. 

^ Op. cit, p. 229. A like provision recurs more than once in later 
volumes of Van der Chijs. 
* Dona Clara v. Dona Maria (1822) Ramanathan, 1820-33, p. 33. 
^ Anon. Van der Straaten, p. 172, and Appendix H. 



INTESTATE SUCCESSION 337 

To-day, the question is of merely historical interest, now 
The law of intestate succession in this colony is now gtatu^.^^ 
regulated by the Matrimonial Rights and Inheritance 
Ordinance (No. 15 of) 1876, which provides (sec. 40) that 
' in aU questions relating to the distribution of the pro- 
perty of an intestate, if the present Ordinance is silent, 
the rules of the Roman-Dutch Law as it prevailed in North 
Holland are to govern and be followed '. 

The law of South Africa, Hke the law of Ceylon, exhibits Intestate 
some confusion between the two systems of succession. !"™1!.' 

•^ sion in 

In Cape Colony, in the case of Spies v. Spies,^ ' the counsel South 
for both parties admitted that, by the Placaat of Janu- ^^^ ^j^^ ' 
ary 10, 1661, the law of North Holland, including the Cape; 
Political Ordinance of April 1, 1580, and the Interpreting 
Ordinance of May 13, 1594, was made the law of the 
Colony.' Counsel, however, were wrong. In Rauben- 
heimer v. Exors. of Van Breda,^ which settled the law for 
Cape Colony, de ViUiers C. J. referred to a Resolution of 
the Governor-General in Council, bearing date June 19, 
1714, whereby the Board of Orphan Masters was directed 
in aU cases of succession ah intestato, to follow sees. 19 to 29 
of the Ordinance of 1580, and the Edict of 1594, in so far 
as they have been adopted by the charter of 1661. The 
charter therefore determines the law for the Cape Pro- 
vince. The learned Chief Justice indeed goes on to say 
that ' it is a mistake to speak of the North Holland Law 
or of the South Holland Law as the law of this Colony ', 
nevertheless, since the Octrooi itself rests upon the 
Schependoms Law, except where it expressly departs from 
it, we may accept as generally true the dictum of Mr. 
Justice Smith, that ' the South Holland Law as included 
in the Political Ordinance of 1580 is the law of inheritance 
ab intestato in the Colony '. 

Upon a total failure of blood relations the Crown is 
entitled to claim a vacant inheritance.* 

For Natal the case of In re the intestate estate of P- K. in Natal ; 

1 (1845) 2 Menz. 476. ' (1880) Foord, 111. 

3 Ex parte Leeuw (1905) 22 S. 0. 348. 
1713 Z 



338 THE LAW OF SUCCESSION 

Gledhill^ decides in favour of the Schependoms Law. 
Van Breda's case was cited and followed. 

Apart from statute, a surviving spouse in South Africa 
does not succeed ab intestato to the predeceasing husband 
or wife. In Natal there has been some legislation. By 
Law No. 22 of 1863, sec. 2 ' Community of goods . . , 
shall not attach to any spouses who have been or shall be 
married elsewhere than in South Africa, unless the spouses 
by agreement exempt themselves from this law ', and by 
sec. 5 ' When the husband of any marriage, from which 
commimity of goods is excluded by the provisions of this 
law, shall die intestate and leave his wife him surviving 
then in any such case the wife so surviving her husband 
shall be entitled to receive and have one-half of the pro- 
perty belonging to her deceased husband ' ; but if there 
is lawful issue of the marriage, by a later law she takes 
one-third.^ It has been held that the above section 
apphes whenever community of goods is excluded, 
whether under sec. 2 {supra), or by ante-nuptial or 
post-nuptial contract, 
in the In the Transvaal and Orange Free State Provinces, 

Transvaal intestate succession does not seem to have been the subiect 

and the ^ , , ,. . /-> • i 

Orange of legislation or of judicial decision. One might suppose 
State that, since these colonies were settled from the Cape and 
from Natal, they must have the same law of intestate 
succession. The learned Dr. Nathan, however, makes the 
starthng suggestion that perhaps this is not so. 'It is 
argued that, inasmuch as at the time of promulgation of 
the charter, the Dutch East India Company had in South 
Africa jurisdiction only over those territories known as the 
Colony of the Cape of Good Hope, the charter cannot, 
without a special promulgation be of any force or effect 
in colonies . . . which came into existence after the 
jurisdiction of the Dutch East India Company over the 
Cape Colony had ceased to exist.' * But if the law of 

1 (1891) 12 Natal Law Reports 43. 

2 Law No. 14 of 1882, sec. 1. 

Nathan, The Common Law of South Africa, vol. iii, p. 1951. 



Ordre 
van 



INTESTATE SUCCESSION 339 

Cape Colony was not carried into the territories of the 
Eepublics, what was ? Apart from this channel of influ- 
ence, there seems to be no reason for deciding in favour of 
either of the competing schemes of intestate succession 
in preference to the other, and in the absence of proof of 
established custom we should be driven to the paradoxical 
result that these provinces had no law of succession at all. 
Pending further information, it will be better to assume 
the common law on this subject to be the same in all four 
provinces. 

It remains to speak of intestate succession in the colony Intestate 
now known as British Guiana. Here, too, the course of gjon"^'^ 
legislation was uncertain and inconsistent. In 1629 the in the 
States-General issued an Order of Government for the indies, 
places conquered and to be conquered in the West Indies.^ 1629 
This applied to such lands ' the Pohtical Ordinance of 
1580, and further the common customs of South HoUand Regier- 
and Zeeland, since the same are most known, can easily 
be appHed, and will introduce the least obscurity and 
alteration '. Thus the settlements in the West Indies 
were to be governed by the Schependoms-recht, the law 
of succession of South Holland. 

In the year 1732 a new rule was enacted for the colony 1732. 
of Berbice. The charter of December 6 of that year,^ for 
after reciting the importance of proAdding for the intestate Berbioe. 
succession to colonists and others who shall have estab- 
lished themselves in the colony aforesaid, enacted that 
every person going thither shall be allowed to choose such 
known law of intestacy as shall please him,* but in default 
thereof, the charter given to the East India Company 
under date January 10, 1661, shall be followed. This 
charter, of which we shall hear again, is in its main fea- 
tures (with one important modification) Schependoms 
Law. Finally, for Demerara and Essequibo, by resolution 

1 Ordre van Begieringe, October 13, 1629, Art. 59 (2 G. P. B. 1235); 
Van der Vorm, p. 634. 

2 Van der Vorm, p. 637 ; V. d. K., ubi sup. 

^ Verkiezing van land-recht. Gr. lib. ii, cap. xxix. 

Z2 



340 



THE LAW OF SUCCESSION 



Intestate 
succes- 
sion in 
British 
Guiana. 



of October 4, 1774/ the States-General enjoined the 
observance of the Aasdoms Law of North Holland as 
contained in the Placaat of 1599. 

The three settlements of Demerara, Essequibo, and 
Berbice have from 1831 been combined in the Colony of 
British Guiana. Since no statutory change has harmon- 
ized the law of intestate succession in the three counties, 
this Colony to the present day retains within its Hmits the 
two principal schemes of intestate succession which 
obtained in the old motherland, viz. for Demerara and 
Essequibo the Aasdoms Law, for Berbice the Schependoms 
Law as modified by the Octrooi to the East India Com- 
pany of 1661.^ The particular matter of the succession 
of the spouses is, however, now dealt with by statute. 
By the Deceased Persons' Estates Ordinance (no. 9) of 
1909, sec. (1) : ' When any person dies intestate, with- 
out leaving any child or descendant of any child him 
or her surviving who is entitled to inherit, the surviving 
husband or wife of such person shall be entitled to one 
half of the inheritance left by such person : provided that 
nothing in this section shall be construed to affect any 
ante-nuptial contract or marriage settlement or any 
property held under such contract or settlement.' This 
clause, which took effect on April 3, 1909, superseded 
a similar provision in Ord. No. 9 of 1887 relating 
only to spouses married in community. By Ord. No. 12 
of 1904, which came into operation on August 20 of that 
year,* community of goods is no longer a consequence of 
marriage. Presumably the above-cited enactment leaves 
unaffected the common law right of a surviving spouse to 
succeed in Demerara and Essequibo to the whole of the 



^ The Laws of British Ouiana (ed. 1905), vol. i, p. 1. 

^ In the case of Ex p. Administrator-General, re Estate Alexander 
(1890) 1 L. R. of B. G. (N. S.), 6, the Court considered the law of 
intestacy of Berbice. All the above-mentioned enactments were cited, 
and the decision was in accordance with them. Nevertheless the 
learned editor of the Reports wrongly notes in the Index : ' The distri- 
bution of an intestate estate in Berbice is prima facie under the North 
Holland Law'. 

^ Brit. Qui. Off. Oaz., vol. xx, no. 16. 



INTESTATE SUCCESSION 



341 



deceased spouse's estate in default of all relations by 
b^ood. 

Tlie result of our inquiry is that in Ceylon the law of 
intestate succession is now defined by statute. In 
Demerara and Essequibo the Aasdoms Law obtains ; 
over the whole of Roman-Dutch South Africa as well as 
in Berbice the rules of intestate succession are those of 
the New Schependoms Law as modified by the Octrooi 
of 166 L In Natal and British Guiana there is a statutory 
succession of husband and wife, but in Natal only when 
the spouses are married out of community. 

We conclude this chapter with a translation of the 
Octrooi and a summary of the order of succession which 
it estabhshes. 

' Charter for the East-India Company of these lands 
relating to the law of Intestate Succession in the East 
Indies and on the voyage thither and thence.' 

' The States-General of the United Netherlands make 
known that we, after report received from Mr. Huigens 
and our other Commissioners having viewed and examined 
the Memorial presented to us by or through the Adminis- 
trators of the East India Company of the United Nether- 
lands aforesaid, tending thereto that a settled law in the 
matter of the succession ab intestato to those, who die in 
the East Indies or on the voyage thither or thence should 
be introduced by us ; and taking into consideration that 
we heretofore in the years 1629 and 1636 have permitted 
and ordained that the Political Ordinance issued by the 
States of HoUand and West Friesland over the said 
province in the year 1580 in the places conquered by 
those of the West-Indian Company and Brazil, should be 
followed and there accepted as a general rule : after ripe 
deliberation have found good to consent, grant and allow, 
to the East India Company, as we consent grant and 
allow hereby, that in the matter of succession ab intestato 
and what therefrom depends, over all Lands, Towns and 
Peoples in the Indies aforesaid, being subject to the 
State of the United Netherlands and to the adminis- 
tration of the Company aforesaid, as also with regard 
to the same on the outward and homeward voyage, the 
said Political Ordinance shall be followed and ensued ; 



Summary 
of the 
Law of 
Intestate 
Succes- 
sion in the 
Roman- 
Dutoh 
Colonies. 



Transla- 
tion of 
the 

Octrooi of 
January 
10, 1661. 



342 THE LAW OF SUCCESSION 

so and in such manner as the same by further declaration 
of the States of Holland aforesaid dated May 13, 1594, 
was elucidated ; and with this understanding that, the 
bed between parents of the deceased being severed, and 
one of them, whether father or mother alone surviving, 
the surviving parent shall, along with the brothers and 
sisters of the deceased and their children and children's 
children by representation, succeed to the deceased's 
whole inheritance ; that is to say, the surviAong father or 
mother to the one haK and the sisters and brothers, their 
children and children's children to the other half ; it 
being understood that in such case the half brothers and 
sisters together with their children and children's chil- 
dren must be related to the deceased on the side of the de- 
ceased parent. And in case the deceased left no sisters 
and brothers, but left sisters' and brothers' children and 
children's children, in such event the said children and 
children's children of the deceased brother and sister by 
representation alike and along with the surviving father 
or mother shall succeed to the one half of the estate. 
And if there are no brothers or sisters, nor children or 
children's children of brothers or sisters living, in that 
case the surviving father or mother shall succeed as 
universal heir to all the goods of the deceased and shall 
be preferred to all collateral relatives ; all with the 
understanding that in so far as the inheritance of such 
deceased persons shall be found to include Lands, Houses 
or other fixed and immovable goods, in regard thereof 
shall be followed the Law and Customs of the Provinces, 
Quarters or Places, under which the same fixed and 
immovable goods are situated.' 

Canons of The Combined effect of the Political Ordinance of 1580, 
suoces- the Interpretation of 1594, and the Octrooi of 1661, is to 

sionin 1 1 1 1 p 

South estabhsh the following order of succession as the Common 
f^^<=^ Law of South Africa and of Berbice.^ 



Berbice. 



^ The rules which follow seem to me to give the true effect of the 
Octrooi, which deviates from the Pol. Ord. only in the particulars 
above stated. All the writers on the South African Law agree in 
carrying (in default of prior claims) one halt of the paternal or maternal 
moiety to a sole surviving grandparent and so in case of remoter 
ascendants. I can find no authority for this in the Octrooi, which 
follows in sense and almost in words the language of Art. 3 of the 
Placaat. But this article relates exclusively to parents, not to remoter 
ascendants. If the pretended succession of a surviving grandparent 
to one half of the divided estate is not expressly enacted by the Octrooi, 



INTESTATE SUCCESSION 343 

1. Children succeed equally, males and females aUke, 
with representation 'ptr stirpes in infinitum. 

2. Both parents surviving succeed to equal moieties. 

3. If one parent survives, one moiety goes to such 
parent, the other moiety to brothers and sisters of the 
intestate being the children of the deceased parent, their 
children and grandchildren by representation. If there 
are no brothers and sisters of the intestate surviving, but 
only children and grandchildren of deceased brothers 
and sisters, such children and grandchildren take per 
stirpes as representing their deceased parents. In this 
respect the.Octrooi departs from Art. 3 of the Placaat of 
1594, as above explained ; from which in other respects 
this canon of succession is borrowed. 

If there are no brothers or sisters (or children or grand- 
children of deceased brothers or sisters), being the children 
of the deceased parent, surviving, the whole estate goes 
to ithe surviving parent. 

4. If both parents are dead, the estate goes in equal 
moieties to the children of the deceased father and to the 
children of the deceased mother, i. e. one moiety to bro- 
thers and sisters of the intestate, whether of the whole or 
of the half blood, ex parte paterna, their children and grand- 
children by representation ; the other moiety to brothers 
and sisters of the intestate, whether of the whole or of the 
half blood, ex parte materna, their children and grand- 
children by representation. The whole brothers and 
sisters (and their children and grandchildren) take with 
the whole hand — half brothers and sisters (their children 
and grandchildren) take with the half hand as above 
explained. 

4 a. Failing the above, the whole estate goes to remoter 
descendants of brothers and sisters per capita according 
to proximity of degree without representation. 

6. Failing children and issue of parents, the estate goes 
in like manner to the four quarters {vier vierendeelen), 

where does it come from ? It is not Schependoms-recht, nor Aasdoms- 
reoht, nor jus civile. 



344 THE LAW OF SUCCESSION 

i. e. to grandparents of the intestate per lineas, viz. one 
moiety to the paternal grandparents (both living), the 
other moiety to the maternal grandparents (both hving). 
If in either line, paternal or maternal, one grandparent 
alone survives, such surviving grandparent takes no part 
of the moiety of the inheritance belonging to that Une, 
but such moiety goes wholly to the uncles and aunts of the 
intestate, being the children of the deceased grandparent, 
and to their children (but not grandchildren) by repre- 
sentation.^ 

If both grandparents in either line are dead, the 
moiety of the inheritance belonging to that Mne is again 
divided into moieties, one of which goes to the uncles and 
aunts of the intestate, being the children of the deceased 
grandfather, and to their children by representation, the 
other of which goes to the uncles and aunts of the intestate, 
being the children of the deceased grandmother, and to 
their children by representation. 

5 a. Failing uncles and aunts of either side in either 
line, their portion of the estate goes to the remoter descen- 
dants of such uncles and aunts per capita according to 
proximity of degree without representation. 

6. Faihng aU the above, the estate goes to the ' eight 
quarters ', viz. to great -grandparents and to the descen- 
dants of deceased great-grandparents, according to the 
system above described, collaterals of equal degree taking 
per capita to the exclusion of remoter degrees. 

7. In default of alP blood relations of the deceased, 
the estate goes (in the absence of statutory provision to 
the contrary) not to the surviving spouse but to the fisc 
as bona vacantia. 

^ In other words, a grandparent never succeeds to any part of the 
inheritance unless his or her wife or husband is also alive, in which 
case they divide the part in question between them. 

2 V. d. K. Th. 364. 



INTESTATE SUCCESSION 345 



APPENDIX 

PRECEDENT OP MUTUAL WILL FROM 
SOUTH AFRICA 



NOTARIAL WILL 

BE it hereby made known that on this twentieth day of 
December in the year of our Lord one thousand eight hundred 
and eighty-seven before me Conrad Christian Silberbauer of 
Cape Town Cape of Good Hope Notary Public duly admitted 
and sworn and in the presence of the subscribed witnesses per- 
sonally came and appeared [name, description, place of abode.] 
and his Wife [name.'] And these Appearers being in health 
of body of sound and disposing mind memory and under- 
standing and capable of doing any act that required thought 
judgment or reflection declared their intention to make and 
execute their last Will and testament — ^Wherefore, hereby 
revoking and annulling all Wills codicils and other testa- 
mentary acts heretofore passed by them or either of them the 
Appearers declared to nominate and appoint the survivor of 
them together with the child or children begotten by them 
during their marriage to be the sole and universal heirs of 
the iiirst dying of all his or her estate goods effects stock 
inheritance chattels credits and things whatsoever and where- 
soever the same may be nothing excepted which shall be left 
at the death of the first dying of them whether moveable or 
immoveable and whether the same be in possession reversion 
remainder or expectancy. And if the Testator the said 

shall happen to survive the Testatrix the said 

then the Appearers declared to nominate and appoint the 
Testator to be the Executor of this their Will and adminis- 
trator of their estate and effects and guardian of their minor 
heirs. And if the Testatrix shall happen to survive the 
Testator then the Appearers declare to nominate and appoint 
the Testatrix together with the Testator's brother [name. 



346 THE LAW OF SUCCESSION 

description, place of abode] to be the Executors of this their 
Will administrators of their estate and effects and guardians 
of the minor children of the Testator hereby giving and 
granting unto them all such powers and authorities as are 
required or allowed in law and especially those of assumption 
substitution and surrogation. 

The Testators declare to reserve to themselves jointly during 
their joint lives the power from time to time and at all 
times hereafter to make all such alterations in or additions 
to this Will as they shall think fit either by a separate act or 
at the foot hereof desiring that all such alterations or additions 
so made under their own signatures shall be held as valid 
and effectual as if they had been inserted herein. 
All which having been clearly and distinctly read over to the 
Appearers they declared that they fully understood the same 
and that it contains their last Will and testament desiring 
that it may have effect as such or as a codicil or otherwise 
in such manner as may be found to consist with law. 
Thus done and passed at Cape Town aforesaid the day month 
and year first aforewritten in the presence of the consignatory 
witnesses. • 

As Witness 

(Sgd.) C. E. J. (Sgd.) G. P. H. [Husband:] 

(Sgd.) J. J. E. (Sgd.) F. E. S. [Wife]. 

QUOD ATTESTOR 

(Sgd.) C. Cheistian Silbbebaubr 
Notary Ptjblic. 



INTESTATE SUCCESSION 347 



II 
UNDERHAND WILL 

[From Foster's Legal Forms] 

WE, A. B. and L. B., born S, married in community of pro- 
perty, do hereby revoke all former testamentary dispositions 
made by us, either jointly or severally, and declare this to be 
our last will and testament. 

(1) We appoint the children born of our marriage to be the 
sole and universal heirs, in equal shares, of all the estate and 
effects of whatsoever kind which shall be left by the first dying 
at his or her death. 

(2) We appoint the survivor of us, together with G. H. of 

to be the executors of this our will, administrators of 

our estate and guardians of our minor children, granting to 
our said executors and guardians all power and authority 
allowed in law, and especially those of assumption. 

(3) We reserve to ourselves jointly the power to make all 
such alterations in or additions to this our will as we shall 
think fit, either by a separate act or at the foot hereof, desiring 
that all such alterations or additions so made under our 
signatures shall be held as valid and effectual as if they had 
been inserted herein. 

In witness whereof we have hereunto set our hands at 

this day of , nineteen hundred and 

in the presence of the subscribing witnesses. 

A. B. 

Witnesses ^- ^• 

CD. 
E. F. 



INDEX 



Aasdoms Law, succession under 
the new, 331. 
succession under the old, 328. 
Aasdoms-recht, 326. 
Absolute liability, 278. 
Accession, 122. 
Acquests, see Profits. 
Act of deliberation, 306 (n. 7). 

of verweezing, 54 (n. 3). 
Acte van Opening, 294 (n. 7). 

van superscriptie, 294. 
Actio ad supplendam, 303. 

de damno in nave aut caupona 

facto, 281. 
de effusis vel dejectis, 281. 
de posito vel suspenso, 281. 
de tigno juncto, 125. 
doli, 200. 

h3rpothecaria, 179. 
quanti minoris, 253. 
redhibitoria, 253. 
Actions, limitation of, 134, 241-3 

[see Prescription]. 
Actus, 160. 
Administration of minor children's 

property, 33. 
Adulterine bastards, testamentary 

incapacity of, 299. 
Adultery, damages for, 277. 
dissolution of marriage, on 

ground of, 98. 
ground of testamentary inca- 
pacity, 300. 
marriage prohibited between 
persons who have committed, 
66. 
Agreement, forms required for, 
195. 
none without union of minds, 
190. 
Agreements, how made, 190. 

vague or uncertain, 192. 
Air, rights in respect of, 113, 136 

(n. 3). 
Alienation, by guardians, 55-8. 
prohibition of, its effect, 316. 
under mistake, 195. 



Alimony, 99. 

Allodial ownership in Holland, 

139. 
Alluvion, 123. 

Alteri stipulari nemo potest, 211. 
Amende honorabel en profitabel, 

276. 
Animals, liability for injury by, 

278, 283. 
Animus injuriandi, 274. 

nocendi vicino, 136 (n. 1), 278 
(n. 2). 
Annus luctus, 29, 300. 
Antenuptial Contracts, 83-98. 
classification of clauses in, 86. 
clauses in, relating to succes- 
sion, 208. 
exclusion of community of 

goods by, 90. 
exclusion of community of 
goods and of profit and loss 
by, 91. 
exclusion of marital power by, 

91. 
form of, in use in South Africa, 

108. 
irrevocable by act inter vivos, 

97. 
registration of, 84. 
revocable by mutual will, 97. 
rights of succession under 96. 
settlements effected by, 93. 
terms which may be inserted in, 

86. 
writing, whether necessary for, 
83, 199. 
Antichresis, 180. 
Aquae ductus, 150. 
Aquae haustus, 150. 
Artificial personality, 105. 
Assignatio, 214 (n. 5). 
Assignation, 240. 

Assignment of contractual duties, 
213. 
of contractual rights, 213-14. 
of lease, 258-9. 
Associations, voluntary, 105 (n. 3). 



350 



INDEX 



Attorney, right of retention of 

papers by, 170. 
' Aurea ' of Gains quoted, 188. 
Authentica si qua mulier, 28 (n. 4), 

264. 

Bank van leaning, 163 (n. 2). 
Banns, publication of, 35, 76. 
Bastards, right of succession of, 
30. 
right of succession to, 30 (n. 4), 

330 (n. 3). 
testamentaryincapacityof adul- 
terine and incestuous, 299. 
Basutoland, Roman-Dutch Law 

in, 11. 
Batavia, Statutes of, 7 (n. 3), 334, 

336. 
Bechuanaland Protectorate, 

Roman-Dutch Law in, 11. 
Belet van hoger timmering, 151. 
Belofte, 191 (n. 1). 
Beneficium abstinendi, 285. 
cedendarum actionum, 266. 
competentiae, 250. 
divisionis, 61, 245, 266. 
excussionis, 61, 266. 
inventarii, 286. 
ordinis seu excussionis, 266. 
Berbice, 11. 

intestate succession in, 339-42. 
Octrooi for, of December 6, 1732, 
339. 
Besloten testament, 294. 
Betaling, 218. 
Bewijs, 101. 
Birth, 28. 

Boedelhouderschap, 100. 
Boey, Woorden-tolk, 17. 
Breach of contract, consequences 

of, 228. 
British Guiana, see Guiana, 

British. 
Bynkershoek, Cornelis van, 16. 

Canon Law, 2, 197. 
Cape of Good Hope, British 
occupation of, 8. 

Dutch occupation of, 7. 

intestate succession at, 337. 
Carriage, by land and by water, 

266. 
Cattle, trespassing, 278. 
Causa, the doctrine of, 198. 
Cession of actions, 213-16. 



Ceylon, British occupation of, 8. 
Dutch occupation of, 7. 
intestate succession in, 336. 
Roman-Dutch Law in, 10 (nn. 
1, 2), 22, 24. 
Ceylon Law, contract to marry 
must be in writing, 64 (n. 6). 
Champerty, 207. 
Charities, 105. 
Charles V, legislation of, 5. 
Child, benefited by contracts of 

parent, 211. 
Chil(ten,minor,acquisitions by,36. 
administration of property of, 

33. 
consent of guardians to mar- 
riage of, 74. 
consent of parents to marriage 

of, 35, 70-2. 
contracts of, 34. 
custody and control of, 33, 35. 
parents' rights in respect of 

property of, 35. 
right to provide guardians for, 
33, 46. 
Children and Parents, reciprocal 

duty of support, 31. 
Clausule derogatoir, 295. 
Clausule reservatoir, 295. 
Co-creditors, 244. 
Co-debtors, 244. 
distinguished from sureties, 
244. 
Codex Theodosianus, 2. 
Codicils, 307. 
Collatio bonorum, 289. 
Communio bonorum, see Com- 
munity of Goods. 
Community of Goods, 80-3. 
contrasted with community of 

profit and loss, 87. 
effects of, 81. 
ends on dissolution of marriage, 

82. 
exclusion of by antenuptial 
contract, 83, 86. 
Community of Profit and Loss, 87. 
Compensation, 236. 
efiect of, 237. 

not allowed in case of depasit, 
264. 
Compound interest, prohibition 

of, 224. 
Concubine, gift to, 248 (n. 6). 
testamentary gift to, 298, 299 
(n. 4). 



INDEX 



351 



Condictio indebiti, 41, 78. 

ob turpem causam, 206. 
Condition subsequent, 241. 
Confusion or merger, 236. 
Consideration, the English doc- 
trine of, unknown to Roman- 
Dutch Law, 197. 
Consignation, 235, 263 (n. 8). 
Consortium, loss of, 277. 
Contract, assignment of, 213. 

capacity of parties, 210. 

consequences of breach of, 228. 

construction of, 233. 

damages for breach of, 231. 

decree of specific performance 
of, 65, 232. 

definition of, 188. 

determination of, 234. 

duty of performance, 217. 

effect of fraud on, 201. 

effect of illegality on, 205. 

effect of innocent misrepre- 
sentation on, 202. 

elements of a valid, 189. 

essentials of, 197. 

excuses for non- performance, 
227. 

failure to perform, 227. 

formation of, 189. 

historical development of, 195. 

impossibility of performance, 
193 (n. 3), 227, 240. 

interference with, 277. 

interpretation of, 233. 

novation of, 213. 

of Sale, see Sale. 

performance of, 217, 234. 

performance of, before perform- 
ance is due, 226. 

performance of, by married 
women, 219. 

performance of, by minors, 219. 

performance of, by persons 
under disability, 219. 

performance of, by third par- 
ties, 218. 

performance of, to whom may 
be made, 219. 

persons afiected by, 210. 

proof of, 233. 

specific performance of, 65, 232. 

suspensive condition in, 227. 

to marry, 64-6. 
Contracts, bonae fidei, 201. 

concluded through the post, 191. 

gaming and wagering, 208. 



Contracts {continued). 

illegal, 206. 

in early Dutch Law, 197. 

in Boman Law, 196. 

in Eoman-Dutch Law, 197. 

special, 247. 

stricti juris, 201. 

terms imposed by law in, 217. 

valid, 188. 

void, 188. 

voidable, 189. 
Contribution, between co-credi- 
tors and co-debtors, 246. 
Contributory negligence, 280 (n. 0). 
Cornely, Gregorius, 334. 
Corporations, 105, 106. 

liable for wrongful acts of 
agents, 219. 
Correi promittendi vel debendi, 
244. 

stipulandi vel credendi, 244. 
Council of X, 7. 
of XVII, 7. 
Culpa, 268. 
Curators, 49-50. 

ad litem, 50. 

assumed, 49. 

bonis, 50. 

dative, 50. 

nominate, 49. 
Custody, of children, 33. 
Custom, a source of law, 19. 
Cynsen, 164. 
Cynsrecht, 139. 

Damage-interest, 223. 
Damages, exemplary, 281. 
measure of, 231, 280. 
nominal, 281. 
Damnum emergens, 231, 281. 

sine injuria, 270. 
Death, compensation claimable in 

respect of, 274. 
Deceased wife's sister, marriage 

with, 68 (n. 6), 69. 
Decisien en Resolutien van den 

Hove van Holland, 18. 
Decisiones Frisicae, 18. 
Decisions of the Courts, a source 

of law, 17. 
Decker, W., his edition of van 
Leeuwen's Boomsch-Hol- 
landsch Becht, 15, 16. 
ontheessentialsof contract, 197. 
Deeds registry, in South Africa, 
130. 



352 



INDEX 



Defamation, 274. 
Defloratie, 272. 
Delectus personae, 216. 
Delegatio, 214 (n. 5). 
Delegation, 239. 
Delicts, 267. 

actions for, actively and pas- 
sively transmissible, 279. 

classification of, 270. 

limitation of actions for, 282. 

theory of, in Roman Law, 269. 

theory of, in Roman-Dutch 
Law, 271. 

who are liable for, 279. 

who may sue for, 279. 
Delivery, 126. 
Demerara, capitulation of, 10. 

intestate succession in, 339. 
Deposit, 263. 
Divorce, 98. 

Dogs, injuries by, 278, 284. 
Dolus, 268 [see Fraud]. 
Dominium, see Ownership. 
Donatio sub modo, 250. 
Donation, 248. 
Donations, between spouses, 100, 

248. 
Douarie, 94. 

Dower, wife's hypothec for, 169. 
Dreef, 150. 
Drop, 152. 
Drop-vang, 152. 
Drunkards, delicts of, 279 (n. 

1). 
Dutch Statute Law in Dutch 

Colonies, 7. 
Duty of the 40th Penny, 129, 172, 

173. 
Dykring, 164. 

East India Ciompany, Dutch, 6, 9 

[see Octrooi]. 
Elopement, a ground of testa- 
mentary incapacity, 298 (n. 

4). 
English Law, reception of, in the 

Roman-Dutch Colonies, 20, 21. 
English Law of Torts, influence of, 

268. 
Emancipation, from parental 

power, 36. 
Emphyteusis, 139 (n. 4), 140. 
Erfpacht, 139, 140 (n. 1). 
Espousals, 64. 
Essequibo, intestate succession in, 

339. 



Everardus, Nioholaus, 3. 
Eviction, 221, 249, 250. 
Exceptio doli, 200. 
Exchange, 253. 
Executor, testamentary, 288. 

Factor, tacit hypothec of, 170. 
Father, binds child by contracts, 
211. 
extent of liability for minor 

child's contract, 34. 
gift to child by, 35 (n. 10). 
natural guardianship of, 33 (n. 

6). 
represents son in court, 34. 
Fear defined, 203. 

effect of on contract, 203. 
Feuds, in Holland, 139. 
Fidei-commissa, 311. 

compared with trusts, 313. 
how created, 315. 
in Dutch Law, 314. 
in Roman Law, 311. 
in the modern law, 314. 
Fidei-commissaries, tacit hjrpothec 

of, 170. 
Fidei-commissum, conditional, 
316. 
effect of, 318. 

life interest created by, 321. 
residui, 316. 
Fiduciary, payment to, 220. 
Fiscus, 105. 
forfeiture to, 301. 
tacit hjrpothec of, 166. 
Fishing-rights, 115. 
Fixtures, compensation for, 257. 
Foreclosure, unknown in Roman- 
Dutch Law, 180. 
Form, not a requisite of con- 
tract in Roman-Dutch Law, 
197. 
Frankish empire, 2. 
Fraud, action for, 277. 

contracts induced by, whether 

void or voidable, 201. 
effect of in Roman Law, 200. 
inducing mistake, 195. 
Labeo's definition of, 200. 
remedies for in Roman-Dutch 
Law, 201. 
Free market, 252 (n. 4). 
Fruits, overhanging, 137, 152 
(n. 1). 
perception of, 125. 
Funeral expenses, 165. 



INDEX 



353 



Gaming and wagering contracts, 

208. 
Gemeenschap van goederen, see 

Community of Goods. 
General bond, 174. 
Ghosts, 256 (n. 5). 
Gift, 248. 

conditional, 250. 
registration of, 249. 
revocation of, 249. 
to concubine, 248 (n. 6). 
Gifts, between spouses, 248. 
Goot-reoht, 152. 

Great Privilege of Maria of Bur- 
gundy of 1476, 131. 
Groenewegen van der Made, works 

of, 14. 
Groot, Hugo de, see Grotius. 
Grotius, Inleidinge tot de HoUand- 
sche Rechts-geleertheyd, 14. 
opinions of, translated by De 
Bruyn, 18. 
Guarantee, 264. 
Guardians, accounts of, 58. 

administration of property by, 

55. 
alienation of immovables by, 

55-7, 163 (n. 5). 
alienation of movables by, 56. 
appointment of, 49. 
assumed, 45. 

authorize the minor's acts, 69. 
cannot make gifts in name of 

minor, 248. 
cannot take under minor's will, 

298. 
confirmation of, 47, 49. 
consent of to marriage of 

minors, 74. 
contract in the name of the 

minor, 59, 211. 
dative, 46. 

distribution of estate by, 63. 
insolvency of, 64. 
inventory required of, 52. 
kinds of, 44. 
liabihty of, 61. 
maintenance and education of 

minors by, 64. 
mortgage of immovables by, 

163 (n. 5). 
powers, rights, and duties of, 52. 
removal of, 62. 
represent minor in court, 58. 
security required from, 52. 
testamentary, 44, 45. 
1713 A 



Guardianship, 44, 64. 

actions arising out of, 60. 

determination of, 63. 

disquaUfications for, 50. 

excuses from, 51. 

of blood-relations, 46. 

of mother, 48. 

of surviving parent, 47. 
Guiana, British, 7, 10, 20-3. 

British occupation of, 8. 

Dutch settlement of, 7. 

intestate succession in, 339. 

mortgages in, 175, 185. 

Roman-Dutch Law in, 10, 22, 23. 

system of conveyancing in, 184- 
6. 

universal succession of heir in, 
289 (n. 1). 

Handvesten, 3. 

Heir, institution of, 305. 

position of in modern law, 289. 
position of in Justinian's Law, 

286. 
substitution of, 305. 
Hereditas jacens, 105. 
Heres extraneus, 286. 
Heres suus, 285. 
Hire, 253. 

determination of contract of, 

260. 
of land, 254 [see Lease]. 
Hof van Holland, 3 (n. 3). 
Holland, Counts of, 3. 
law of the Province of, in South 

Africa, 8. 
Provincial Comrt of, 3 (n. 3). 
Hollandsohe Consultation, 18. 
Hooge Baad van Holland en 
Zeeland, 3 (n. 4), 288 (n. 3). 
Huber, Ulrik, works of, 15. 
Husband, binds wife by his con- 
tract, 211. 
not answerable for wife's delicts, 
279 (n. 2). 
Husband and Wife, intestate suc- 
cession of, 333, 338. 
Huur-cedulle, 142 (n. 3). 
Huur gaat voor Koop, 141. 

Illegality, in contract, categories 

of, 206. 
Illegitimate issue, 28, 30. 
Immovables, mortgage of, 172. 

transfer of, see Transfer. 

what things included under, 117. 



354 



INDEX 



Impetratio dominii, 180, 
Impossibility of performance, 

193 (n. 3), 227, 240. 
Impound, right to, 283. 
Improvements, effected by lessee, 

258 (n. 2). 
Inaedificatio, 125. 
Inbalcking ofte inanckering, 151. 
Inbreng, 289. 
Incestuous bastards, testamentary 

incapacity of, 299. 
Inheritance, acceptance of, 306. 

repudiation of, 306. 
Injuria, meaning of, 269. 

sine damno, 270. 
Innkeeper's lien, 170. 
Innocent misrepresentation, effect 

of on contract, 202. 
Insane persons, curators of, 50. 

incapable of marriage, 66, 100. 
Insanity, 103-4. 
Interdiction of prodigals, 104. 
Interest, 223. 

cannot be claimed in excess of 
principal, 224. 

legal rate of, 223. 

prohibition of compound, 224. 
Intestate succession, 326. 

in British Guiana, 340. 

in Ceylon, 336. 

in East Indies, 334. 

in Roman-Dutch Colonies, sum- 
mary of, 341. 

in South Africa, 337. 

ia West Indies, 339. 

of bastards, 30. 
Interpleader, 220 (n. 9). 
Inundation, 124. 
Invecta et illata, 167, 168. 
Inventory, duty of fiduciary to 
make, 319 (n. 2). 

duty of guardians to make, 52. 

duty of surviving parent to 
make, 101. 

duty of usufructuary to make, 
159. 
Investment by father of child's 
money, 34. 

by guardian of ward's money, 55. 
Island, rising in river, 124. 
Iter, 150. 

Judicial Separation, 99. 
Juristic persons, 105. 
Jus acorescendi, 289 (n. 5). 
altius non tollendi, 151. 



Jus altius tollendi, 161 (n. 8)., 
arenae fodiendae, 151 (n. 1). 
calcis coquendae, 151 (n. 1). 
cloacae mittendae, 152. 
in re aliena, 112, l49. 
in rem, 112. 
luminum, 162 (n. 2). 
oneris ferendi, 151, 167. 
retentionis, 177. 
retractus, 253. 
stiUicidii vel fluminis non re- 

cipiendi, 152. 
stillicidii vel fluminis recipiendi, 

152. 
tigni immittendi, 151. 
tigni projiciendi vel protegendi, 

151. 

Keessel, D. G. van der, 16. 
Kersteman, Woorden-boek, 17. 
Kinderbewys, 54. 
Koop brefekt Huur, 141. 
Kraam-kosten, 272. 
Kusting-brief, 173 (n. 1), 177. 

Laesio enormis, 58, 203. 
Land, contracts relating to, 
whether need be in writing, 
199. 
kinds of ownership of, 139. 
leases of, 141^4. 
quit-rent tenure of, 139. 
tenure of in the Colonies, 144. 
villein tenure of in Holland, 140. 
Landlord's lien, 254. 
Lastering, 274. 

Latent defects in goods sold, 253. 
Lease, 254. 

history of, in Holland, 141. 

in British Guiana, 185. 

in South Africa, 142. 

in the modern law is a kind of 

land tenure, 143. 
of rural tenements, transfer- 
ence of, 216. 
registration of, 142 (n. 3). 
relief against forfeiture of, 261. 
requirements of Political Ordin- 
ance, 1580, as to form of, 
141 (n. 4). 
writing, whether necessary for, 
141. 
Leenen, Leen-recht, Leen-gereoht, 

. 139. 
Leeuwen, Simon van, 1. 
works of, 14-15. 



INDEX 



355 



Legacies, 307. 

revocation of, 309. 
Legatees, tacit hypothec of, 170. 
Legitimacy, 28-30. 

presumption as to, 29. 
Le^tim, 303. 
Ijegitimation, 30, 36. 
Lessee, duties of, 256. 

right to compensation for fix- 
tures, 257. 

right to compensation for trees 
planted, 258. 

right to remission of rent, 255. 
Lessor, duties of, 255. 

tacit hypothec of, 167. 
Lex Anastasiana, 214 (n. 4). 
Lex hac edictali, 102. 
life-interest, how created, 321. 
Lime kiln, right of having, 151. 
Limitation, of actions, 134, 241-3. 
Linden, Joannes van der, 6. 

on the grounds of nullity in 
contract, 198. 

rules for construction of con- 
tracts, 233. 

works of, 17, 18. 
Liquidated damages and penalty, 

232. 
Livelihood, interference with, 277. 
Ijoan, for consumption, 263. 

for use, 263. 
Locatio conductio operarum, 264. 

rei, 254. 
Lombard, meaning of, 163 (n. 2). 
Losses, meaning of in antenuptial 

contracts, 89. 
Lost property, 121. 
Lucrum cessans, 238, 281. 
Lunatics, actions by, 279. 

not liable for dehcts, 279. 

Maintenance, 207. 
Majority, acceleration of, 38. 

age of, 37. 
MaUce, 275 (n. 2). 
Malicious prosecution, 275. 
Mandament van Immissie, 145. 

oomplainte, 147. 

maintenue, 145. 

sauvegarde, 146. 

spolie, 146. 
Mandate, 261. 
Market, sale in, 262 (n. 4). 
Marriage, 64-103. 

between female ward and guar- 
dian, 67. 



Marriage (continued). 

capacity to marry, 66. 

consent of parents to, 70, 72, 75. 

decree of nulUty of, 99; 

disqualifications on ground of 
religion, 67. 

dissolution of, 98. 

efieot of, in respect of the pro- 
perty of the spouses, -80. 

effect of, on personal status of 
wife, 77. 

formal requirements of, 76. 

legal consequences of, 77-83. 

legal requisites of, 66-77. 

prohibited degrees, 68, 69. 

puts an end to minority, 38. 

second marriages, 102. 

the contract to marry, 64-6. 
Marriage Settlements, 93. 

in antenuptial contracts, legis- 
lation as to in South Africa, 95. 

provisions of Perpetual Edict 
as to, 94^5. 
Married Woman, payment by, 219. 

payment of debt due to, 220. 

unable to contract without hus- 
band's authority, 219. 

will of, 298. 
Master of ship, binds shipowner 

by his contracts, 211. 
Masters, liable for delicts of ser- 
vants, 279. 
Maxims : Alteri stipulari nemo 
potest, 211. 

Breekt koop geen huur, 141. 

Dies interpellatpro homine, 229. 

Eene moeder maakt geen bas- 
taard,.30. 

Erfnis is geen winste, 88 (n. 5). 

Het goed klimt niet geern, 330. 

Het goed moet gaan waar het 
van gekomen is, 326. 

Het naaste bloed erft het goed, 
326. 

Huur gaat voor koop, 141. 

In dehcto pari potior est pos- 
sessor, 206 (n. 5). 

In pari delicto potior est con- 
ditio defendentis, 205. 

Koop breekt huur, 141. 

Moribus hodiernis ex nudo 
pacto datur actio, 197 (n. 5). 

Nemo promittere potest pro 
altero, 210. 

Non videntur qui errant coa- 
sentire, 192. 



Aa2 



356 



INDEX 



Maxims {continued). 

Nuda pactio obligationem non 
parit sed parit exoeptionem, 
196. 
Nulla promissio potest oonsi- 
stere quae ex voluntate pro- 
mittentis statum capit, 192. 
Nulla voluntas errantis est, 

192. 
Nulli res sua servit, 156. 
Pater est quern nuptiae demon- 

strant, 29. 
Regula est juris quidem igno- 
rantiam cuique nooere, facti 
vero ignorantiam non nooere, 
192 (n. 9). 
Seryitus servitutis esse non 
potest, 157. 
Mechlin, Great Council of, 3. 
Merger, 236. 
Met de handschoen trouwen, 66 

(n. 1). 
Met de voet stoten, 252 (n. 2), 

253 (n. 1). 
Mines, 122. 
Minority, 37-43. 
Minors, actions by, 58, 279. 
cannot make a gift, 248. 
contracts of, 39-41. 
delicts of, 41, 279. 
mortgage of immovq,ble pro- 
perty of, 163. 
payment of debt due to, 220. 
restitutio in integrum of, 42, 43. 
rights in respect of property, 41, 

42. 
rules as to capacity of, 39-43. 
wills of, 297, 298. 
[see Children, minor]. 
Mistake, as to the person, 194. 
as to quality, 194. 
effect of, 192, 194. 
induced by fraud, 195. 
of fact, 193. 
of law, 192. 

property alienated under, 195. 
Mora, 229-31. 
Mora interest, 230. 
Morgen-gave, 94. 
Mortgage, 162-82. 

conventional, 164, 171-176, 180 

-2. 
general, 163, 172. 
special, 163, 172, 173. 
tacit, 164, 171, 178. 
Mortgagee, rights of, 179, ]8l. 



Mortgages, of land, classed with 

movables, 118. 
Mortgagor, rights of, 179. 
Movables, general mortgage of ,174. 

special mortgage of, 173. 

what things included under, 118. 
Muirbezwaring, 151. 
Mutual Will, 97, 324. 

(precedent of), 345. 

Naasting, 253. 
Naeranus, Joannes, 18. 
NahujT, 141 (n. 5). 
Napoleonic Codes, 6. 
Natal, intestate succession in, 337, 
341. 

Roman-Dutch Law in, 11. 
Nathan, Dr. Manfred, 19, 338. 
NegUgence, see Culpa. 
Negligence, contributory,280(n.6). 
Negotionun gestio, 220. 
Neostadius, Cornelius, 18. 
Non-performance, penaltyfor,221. 
Nood-weg, 150. 
Notarial Will, 293, 296, 297, 302 

(n. 7), 345. 
Novatio necessaria, 240. 
Novation, 213, 239. 
Noxal surrender, 283, 284. 
Nuda proprietas, 112. 
Nuisance, Law of, 273. 

what amounts to, 137. 
Nulli res sua servit, 156. 
Nullity, of marriage, decree of, 99. 

Obligatio generis, 221. 
Obligation, definition of, 187. 
Obligations, arisingfrom Contract, 
188. 
arising from delict, 267. 
arising from miscellaneous 

sources, 282. 
civil, 187. 
natural, 187. 
Occupation, 120. 

Octrooi for Berbice of December 6, 

1732, 339. 

to the East India Company of 

January 10, 1661, 9, 335, 341. 

Ofier and acceptance in contracts, 

190-1. 
Opinions of Jurists, a source of 

law, 18. 
Opper-voogdij, 45. 
Orange Free State, intestate suc- 
cession in, 338. 
Boman-Dutch Law in, 12. 



INDEX 



357 



Ordre van Itegieringe of 13 Oc- 
tober, 1629, 339. 
Orphan Chamber, 46. 
appointment of guardians by, 

46. 
confirmation of guardians by, 

consents to sale of movable 
property by guardians, 66. 

exclusion of, 47. 

functions of, 47. 

in British Guiana, 47 (n. 8). 

in South Africa, 47 (n. 8). 

inventory to be delivered to, 53. 

prolongs period of guardian- 
ship, 39. 
Orphans, mortgages in favour of, 
173 (n. 1). 

tacit hypothec of, 167. 
Oud-eigen, 139 (n. 4), 164. 
Ownership, acquisition of, 119. 

full and qualified. 111. 

incidents of, 135-8. 

meaning of, 111. 

of land, kinds of, 139. 

Pacta nuda, 196. 

Pactum commissorium, 180. 

Pagten metten Houde, 139 (n. 4). 

Palinodia, 276. 

Pand ter minne, 173. 

Papegay, 17. 

Paratitula Juris Novissimi, 1, 15. 

Parent, benefited by contracts of 

child, 211. 
consent of to marriage of 

children, 35, 70-6, 99. 
duty to make inventory, 101. 
gifts by to children, 248. 
guardianship of surviving, 47, 

101. 
Parent and Children, reciprocal 

duty of support, 31. 
Parentage, 31. 
Parental Power, 32-6. ] 
Part performance, 221. 
Partnership, 261-3. 

English and Roman-Dutch Law 

of compared, 262. 
Pasture, right of, 151. 
Pater est quern nuptiae demon- 

strant, 29. 
Patria potestas, 32. 
Payment, by whom it may be 

made, 219. 
of debt due to a minor, 220. 



Payment {continued). 
place of, 225. 
proof of, 222. 
time of, 225. 
to a fiduciary, 220. 
to whom it may be made, 219. 
Payments, appropriation of, 222. 
Pecoris ad aquam appulsus, 150. 
Peculium adventicimn, 35. 

profeotioium, 35. 
Penalty, and liquidated damages, 
232. 
for non-performance, 221. 
Perception of fruits, 125. 
Performance, 217, 234. 
alternative, 221. 
effect of, 221. 
impossibility of, 193 (n. 3), 227, 

240. 
part, 221. 
substituted, 221. 
Perpetual Edict of Charles V, 
October 4, 1540, 5. 
art. 6 (Marriage Settlements), 

94-5. 
art. 8 (Rate of Interest), 223. 
art. 16 (Limitation of Actions), 

135, 242. 
art. 17 (Clandestine Marriages), 
70. 
Perpetuities, rule against in 
Roman and Dutch Law, 323. 
Persons, Law of, 27. 
Philip II, Code of Criminal Pro- 
cedure, 6. 
Pia Causa, 106. 
Pignus, 173. 

praetorium, 164, 177. 
Place of payment, law as to, 225. 
Pledge, 173, 176, 264. 
Plurality, of creditors and debtors, 

244. 
Pohtical Ordinance of April 1, 
1580, 5, 9. 
consent of parents to marriage 

of children, 71-5. 
formal requirements for leases, 

141. 
formal requirements for mar- 
riage, 76. 
formal requirements for mort- 
gage of immovables, 172, 178. 
priorities between mortgagees, 

178. 
prohibited degrees, 68. 
rules of intestate succession, 329. 



358 



INDEX 



Pollicitation, 191. 
Possession, duty of respecting, 
136. 
theory of in Roman-Dutch Law, 
144. 
Possessory Remedies, 144-8. 
in Roman-Dutch Law, 144. 
in the modern law, 147. 
Pothier on Obligations, translated 

by van der Linden, 17. 
Precious stones, 122. 
Pre-emption, 253. 
Prescription, acquisition by, 130-5. 
acquisition of praedial servi- 
tudes by, 163. 
of actions, 241-3. 
Privileged debts, 165. 
Prodigals, curators of, 50. 

interdiction of, 104. 
Profits, meaning of in ante- 
nuptial contracts, 87. 
Prohibited degrees, see Marriage, 

Political Ordinance. 
Prohibition of alienation, effect of, 

315. 
Promise not to sue, 238. 
Property, Law of, 110-12. 
Puberty, age of, 28. 
PubUc market, 252 (n. 4). 
Public policy, 237. 
Pupil, see Guardians, Minors. 
Purchaser, without notice, in 
Roman Law, 319. 
in Roman-Dutch Law, 320. 

Quarta Falcidia, 305. 

Trebelliana, 304 (n. 4), 305, 322. 
Quasi-contracts, 283. 
Quasi-delicts, 281. 
Querela inofficiosae donationis, 
250. 

inofficiosi testamenti, 303. 
Quick pmrsuit, 169. 
Quit rent, 139, 144. 

tacit hypothec for, 164. 

Railway tickets, &c., acceptance 
of, 191. 

Rainwater, 138. 

Reception of the Roman Law, 
extent of, 4. 
in Holland, 2. 

unequal in the various pro- 
vinces, 4. 

Rechtsgeleerde Observatien, 16. 

Eecredentie, 145. 



Redelijk Oorzaak, 198. 
Reed, 150. 
Regalia, 115, 183. 
Registrar of deeds, 200. 
Registration of antenuptial con- 
tracts, 84. 

of leases, 142 (n. 3). 

of mortgages, 172, 173, 174. 

of transfers, 129. 
Release, 238. 
Re-marriage, restrictions on, 29, 

102, 300. 
Rent, 255, 256, 260. 

remission of, 255. 
Res litigiosa, 208 (n. 8), 214 (n. 4), 
216. 

communes, 113, 183. 

extra commercium, 113. 

in commercio, 113. 

nullius, 113, 115. 

publicae, 113, 183. 

reUgiosae, 115-16. 

sacrae, 116. 

singulorum, 113, 116. 

universitatis, 113, 116. 
Restitutio in integrum, against 
contract procured by fraud, 
200. 

of minors, 42, 43, 59, 65, 287. 
Retention, right of, 170, 177. 
Retractus, 253. 
Rhodesia,Southern,Roman-Dutch 

Law in, 12. 
Rights of action, prescription of, 

243. 
Rij-pad, 150. 
Rivers, private, 114. 

public, 114, 115 [see Streams]. 
Roman Law, reception of in Hol- 
land, see Reception. 
Roman-Dutch Law, development 
of, 2. 

extension of in South Africa, 
11. 

future of in British Guiana, 23. 

future of in Ceylon, 24. 

future of in South Africa, 22. 

in British Guiana, 10. 

in Cape Colony, 8. 

in Ceylon, 10. 

origin of, 2. 

origin of the phrase, 1. 

present state of, 22-3. 

sources of, 13. 
Rule in Rylands v. Fletcher, 278 
(n. 4). 



INDEX 



359 



Sale, 251. 

of res aUena, 252. 
Sand, right of taking, 151. 
Sand drift, 125. 
Sande, Joannes k, 18. 
Sohependoms Law, succession 
under the new, 329. 
succession under the old, 327. 
Sohependomsrecht, 326. 
Schorer, Willem, his notes to 

Grotius, 14, 16. 
Seashore, rights in respect of, 114. 
rights of the public and of the 
Crown in, 182. 
Seduction, action for, 272. 
Senatus-Consultum Macedonia- 
num, 263 (n. 7). 
Pegasianum, 322. 
Trebellianum, 322. 
Velleianum, 28 (n. 4), 264. 
Sententien en gewezen Zaken van 
den Hoogen en Provincialen 
Baad, 18. 
Separation a mensa et thoro, 99. 
Servitudes, 148-62. 
definition of, 148. 
Personal, 157. 
Real or Praedial, 149. 
Real or Praedial, acquisition of, 

153-6. 
Real or Praedial, extinguish- 
ment of, 156. 
Real or Praedial, rules as to, 157. 
Rustic, 150. 
Urban, 161. 
Servitus ne luminibus officiatur, 

151. 
Servitus servitutis esse non potest, 

157. 
Set-oflE, 236. 
Sex, 28. 
Ships, deemed immovable, 117 

(n. 6). 
Socage tenure unknown in Hol- 
land, 139. 
Solutio, 218. 

South Africa, Canons of succession 
in, 342. 
Roman-Dutch Law in, 9, 22. 
the Union of, 12. 
works on law of, 19. 
South African Republic, see Trans- 
vaal. 
Spatium deliberandi, 287, 306. 
Special contracts, 247. 
Specific performance, 232. 



Spiegel, Van de, on the reception 
of the Roman Law in Holland, 
2 (n. 3). 
Sponsors, gifts by, 36. 
Spouses, gifts between, 100, 248. 
States-General, The, 7. 
Statute Law, of Cape Colony, 9. 
of Holland, how far in force in 
the Colonies, 7, 24r-6. 
Statutes of Batavia, 7, 17, 334-6. 
Streams, duty not to interfere 
with flow of, 137. 
public and private, 138. 
underground, 136. 
Sublease, 258. 
whether consent of lessor neces- 
sary for, 259. 
Sub-lessee, payment of rent by, 

220. 
Subsidence, duty not to cause, 137. 
Succession, 285. 
future right of, may not be the 

subject of contract, 207. 
intestate, 326. 
testamentary, 290. 
Sureties, benefits available to, 266. 

women may not be, 264. 
Suretyship, 264. 

SwazUand, Roman-Dutch Law in, 
12. 

Tender, 224, 235. 
Testament, see Wills. 
Testamentary executor, 288. 
Testamentary succession, 290. 
Testation, freedom of, may not be 

limited by contract, 208. 
Thing, definition of, 110. 
Things, classification of, 112. 

corporeal and incorporeal, 116. 

immovable and movable, 117. 

Law of, 110. 
Time of payment, law as to, 225. 
Title, vendor not bound to make, 

252. 
Toezegging, 191 (n. l).l 
Trade, interference with, 277. 
Tradition, 126-7 [see Delivery, 

Transfer]. 
Transfer of immovables in British 
Guiana, 128, 184. 

in Ceylon, 129 (n. 4). 

in South Africa, 129. 
Transmission of actions, 213. 

of contractual rights on death, 
216. 



360 



INDEX 



Transmission of contractual rights 
on insolvency, 216. 

Transvaal, intestate succession in, 
338. 
Roman-Dutch Law in, 12. 

Treasure, 121. 

Treatises on Roman-Dutch Law, 
13-17. 

Trebellian portion, abolished in 
the modern law, 322. 

Trees, planted by lessee, com- 
pensation for, 258. 
overhanging, 137. 

Trespass, Law of, 273. 

Treur-Tijd, 29. 

Tutors, see Guardians. 

Tynsrecht, 139. 

Uitkoop, 101. 

Undue influence, CiEEect of on 

contract, 204. 
Unsoundness of mind, 103, 104. 
Use, see Usus. 

Use and occupation, 255 (n. 8). 
Usucapio libertatis, 156. 
Usufruct, 158. 

life interest created by, 321. 
Usus, 162. 

Vacua possessio, 252. 
Veinster-recht, 152 (n. 2). 
Venia aetatis, grant of, 38. 

precedent of, 107. 
Verkiezing van het landrecht, 306 

(n. 3), 339. 
Vertigting, 101. 
Verweezing, Act of, 64 (n. 3). 
Via, 150. 

Vier vieren-deelen, 46, 328, 343. 
Vinnius, Arnoldus, 14. 
Vis major, 220, 267. 
Voet, lohannes, on antenuptial 
contracts, 98. 

works of, 6, 16, 16. 
Voet-pad, 150. 

Voluntary associations, 105 (n. 3). 
Vrij gezicht, 152. 
Vrij lioht, 151. 
Vrije mart, 252 (n. 4). 

Water-gang, 150. 

-haling, 160. 

-leiding, 150. 

-lozing, 150. 

-rights, 138, 160. 
Way, rights of, 160. 



Weeskamers-recht, 173 (n. 1), 
Weg, 160. 

West India Company, Dutch, 7. 
Widows, legal position of minor, 

38 (n. 8). 
Wife, acquires rank, forum, and 
domicil of husband, 77, 
action by against husband, 280. 
action for injury to, 276. 
becomes a minor on marriage, 

77. 
benefited by contracts of hus» 

band, 211. 
contracts of, when binding, 78. 
husband administers property 

of, 78. 
husband contracts in name of, 

78. 
husband may mortgage pro- 
perty of, 163. 
liability of for husband's con- 
tracts, 80. 
postponed to husband's credi- 
tors, 92. 
right of preference and legal 
hypothec of, 92, 169. 
Wild animals, 120. 
WiUs, how made in Holland, 293. 
how made in Roman Law, 290. 
how made in the Colonies, 296. 
mutual, 97, 324. 
mutual precedents of, 345-7. 
nuncupative, 291, 292. 
privileged, 291, 296 (n. 5), 297. 
restrictions on making, 303. 
revocation of, 309. 
solemn, 290. 
who may make, 297. 
who may take under, 298. 
who may witness, 301. 
Women sureties, 28, 264. 
Wreckage, 121. 

Writing, effect of agreement to 
reduce contract to, 192. 
in modern law some contracts 
require to be in, 199. 
Wrongs, see Delicts. 
Wrongs, against property, 273. 
against reputation, 274. 
against the domestic relations, 

277. 
against the person, 271, 
miscellaneous, 277. 

Zultdand, Roman-Dutch Law in.